UNITED STATES v. KAHN
Legal provision: Omnibus Crime Control and Safe Streets, National Firearms, Organized Crime Control, Comprehensive Crime Control, or Gun Control Acts, except for RICO (q.v.) portion
Argument of Frey
Chief Justice Warren E. Burger: Mr. Frey, I think you have about 15 minutes remaining.
You may proceed.
Mr. Frey: Mr. Chief Justice and may it please the Court.
I think I was about to start yesterday with the discussion of Judge Campbell’s order authorizing the wire interception in this case.
The Court of Appeals read the order as though it was limited until the interception of conversations of Irving Kahn with persons unknown, that is, only conversations between Irving and persons unknown.
In fact, the order read conversations of Irving Kahn and others as yet unknown.
We submit that it’s clear as Judge Stevens indicated in his dissent that that would authorize the interception of all the conversations that are in issue in this case.
Chief Justice Warren E. Burger: I take it, you mean by that that if some sort of meeting were held in his home, in Kahn’s home, and other members of the organization handling it were present, their use of the phone would be covered by this authorization?
Mr. Frey: Yes, certainly.
Any conversations over those phones relating to the gambling offenses would be covered by the order.
This is a standard form of language that wire interception orders almost routinely, contained where there’s not any special restriction that’s intended to be imposed on the scope of the reception.
Chief Justice Warren E. Burger: Would you think the warrant where the authorization would be adequate if there were persons then known to the Government who were working as part of this group with Kahn and, yet, not identified in the warrant but if they came to his house and used his phone?
Mr. Frey: Well, let me begin by saying that, as a constitutional matter, I think there is no requirement of identifying the person so long as the conversation so identified was sufficient particularity.
Now, Justice White was touching on this question yesterday whether, as a statutory matter, Congress intended some sanction or suppression to result from such a laps on the Government’s part.
Now, I think that the consequence of saying that after the interception has been completed and the prosecution is broad, and these are frequently, highly complex prosecutions with numerous defendants involving a far-reaching conspiracy, the Government should not be put to the proof of showing with respect to every conversation that it did in some way or somehow, have a probable cause that somebody could dredge up on the basis of which they might have anticipated intercepting the conversations of some individual.
So, I think it would be our position that as long as you name the primary target of the investigation whose zone of privacy you’re expecting to intrude upon which, in this case, would be Irving Kahn and his household telephone.
That that should suffice and that, then all unlawful conversations over the phone can be intercepted.
Now, the statute is quite clear and the Court of Appeals, in referring to the statute, did not fully quote it in discussing this “if known” problem.
Section 2518 (1) provides that the order of the application for the wire interception order shall contain certain information.
In Subsection (b) (iv), it requires -- the Government indicates “the identity of the person, if known, committing the offense and whose conversations are to be intercepted.”
Now, two things emerge from this provision with, we submit, indisputable clarity.
The first is that it concerns persons if known to be committing the offense, and not just persons who are known in some other broader or vaguer sense.
The second is that the statute contemplates circumstances in which no one may be known and, therefore, no one need be named yet, nevertheless, the Government may apply for and obtain from a judge an order authorizing a wire interception.
That might be the case, say, if you had a cigar store or a pool hall where you knew gambling or drug business was being conducted over telephone but you did not know the identities of people.
Justice Potter Stewart: You say that’s by negative implication?
Mr. Frey: I would say, yes.
Justice Potter Stewart: From (4) (a)?
Mr. Frey: Yes.
Justice Potter Stewart: The “if known” contains a negative implication that if --
Mr. Frey: If no one is known, no one need be named.
Justice Potter Stewart: If no one is known, it’s still permissible?
Mr. Frey: Yes, I think it is.
Justice Potter Stewart: You have to get there by negative implication, don’t you?
Mr. Frey: Well, we begin with there being no constitutional requirement for this identification and then we look to see whether the statute has imposed requirements.
In addition to those, there would be required for a conventional search warrant and the requirement should be read, at most, to require what it specifically says.
Unknown Speaker: Well, Mr. Frey, the -- is there any significance in the omission of committing the offense?
Mr. Frey: In Subsection --
Unknown Speaker: From --
Mr. Frey: Subsection (iv)?
Unknown Speaker: Yes, from Subsection (iv) where the distinction is between Roman numeral four and b.
Mr. Frey: We believe that that cannot be read to have any significance because the only source of information for the judge’s order which that subsection deals with is the application that’s been submitted to him.
If we’re not required to identify the application other known persons whose conversations may be intercepted, then --
Unknown Speaker: Well, then you’re suggesting that we also be read into Arabic four.
What’s in Roman four, committing the offense?
Mr. Frey: Yes, we would suggest that and we see, it seems to us, logically inescapable to do that.
Now, one of the underlying concerns, I think, in the case of this sort is the difficulty of the possibility that conversations --
Unknown Speaker: Excuse me, Mr. Frey, is there any --
Mr. Frey: Excuse me.
Unknown Speaker: Legislative history that might explain the omission --
Mr. Frey: The legislative history on this is very, very limited.
These provisions, the “if known” provisions were not in the original Bill.
They were in Professor Blakey’s version and he was counsel to the committee, and as the Bill emerged from the committee, it contained the “if known” provisions.
Unknown Speaker: Just as they are now?
Mr. Frey: As they are now and there was an explanation which was the typical recitation of what they provide with, aside to a case called West against Cabell, which dealt with arrest warrants and not with search warrants and -- which is a little difficult to understand why it was even referred to.
Now, there is a legitimate concern with the problem of intercepting innocent conversations and conversations of innocent persons who may be in the household or who otherwise may be calling in or out from the intercepted telephones.
But I think it’s clear that Congress anticipated that this was inevitable and that indeed, any wire interception must necessarily entail some limited degree of interception of innocent persons or innocent conversations.
I’d like to give some examples of some typical conversations which I think will make this clear.
First of all, we have -- the phone rings and, let’s say, Mrs. Kahn picks up the phone and says “hello.”
Now, at this point, the question is should the people monitoring simply turn the recording off right away because it’s not Irving Kahn.
Well, I think the answer to that is quite clear because the next -- and the answer is, clearly, no.
They can’t turn it off at that point because the next words may be “Is Irving at home?”
“Yes, I’ll put him right on the phone.”
Now, if they can listen past the hello, past the time that Minnie Kahn gets on the phone, the next question may be or the next statement may be “I’d like to bet $500 on the Bears.
What’s the spread?” and she may say “Well, it’s 5 points, but you owe us $1,000 and we can’t take any more bets from you.”
Well, since they have to be allowed to hear this far into the conversation, once this has been monitored, lawfully monitored, there’s no policy either constitutional or statutory that could possibly be served by saying “well, they heard it but they can’t use it in evidence.
They can’t use it to prove the offense because they didn’t name Minnie in the order.”
Chief Justice Warren E. Burger: Suppose, Mr. Frey, that the person who answered the phone is not Mrs. Kahn and totally and truly unknown at that time when it is recorded on the tape.
And later, by some extraneous evidence, some independent evidence, they are able to link that conversation, perhaps through the other party, and identify the speaker.
You -- I take it, you’d think that telephone conversation would be admissible in evidence then?
Mr. Frey: I think there’s no doubt of that and, with the exception of this court, every court has held that where the name target as one of the parties to the conversation, that conversation can be intercepted.
Chief Justice Warren E. Burger: By “this court” you mean the Seventh Circuit?
Mr. Frey: The Seventh Circuit, I beg your pardon, yes.
Here, we have two categories of conversations: the conversations between Irving and Minnie as to which I can’t understand any basis for excluding those so long as they deal with the illegal gambling enterprise.
Since Irving was named in the order, he was a person whose zone of privacy was being lawfully invaded pursuant to this warrant.
He did conduct conversations about the gambling enterprise.
I could see no basis for suppressing those.
Now, similarly, with respect to the conversations between Minnie and third parties where she was transmitting gambling information or taking bets in violation of state law thereto.
They were properly on the phone.
They properly heard these conversations, and they had to.
As you can see from the examples that I’ve cited, I think there’s no basis than in a justification, no policy reasons for excluding them.
Now, I see my time is running short.
I think that I’d just like to make one or two more comments and then save the balance of my time.
The Court of Appeals suggested that somehow the Government should have conducted a further investigation of Mrs. Kahn which they thought might have disclosed her complicity in the illegal enterprise.
We suggest, and we’ve argued this at some length in our brief, that this does not serve Mrs. Kahn’s privacy interest.
It does not serve any privacy interest that the Fourth Amendment is designed to protect.
Since whether or not the investigation disclosed her complicity, the interception of her conversations could still take place.
Finally, on the standing point which we also advert to in the last section of our brief, I’d simply like to cite Alderman, footnote 9, in Justice White’s opinion in Alderman.
There is a discussion of the standing problem and there is a reference to the legislative history which is at page 91 of the Senate Report 1097.
And it was quite clear there that the normal Fourth Amendment constitutional standing rule was intended to be adopted in these wire interception cases and, under that rule, we think it’s clear here that any defect that may have existed was purely personal to Minnie Kahn, and Irving Kahn should have no standing to raise the issue.
If there are no questions at this time, I’d like to reserve the balance of my time.
Chief Justice Warren E. Burger: MFine.
Argument of Anna R. Lavin
Ms Anna R. Lavin: Mr. Chief Justice and may it please the Court.
I don’t know that I entirely understood the latter part of counsel’s argument relative to standing.
The statute itself provides standing for any person aggrieved.
And I think that is conclusive on who has standing.
Along with that, I would like to contest partly what the Government has stated that this Title III case does not involve.
It does here, contrary to what he said, have a minimization issue.
That was not ruled on in the court below as not necessary, perhaps it was somewhat ruled upon by virtue of this case.
The sufficiency of the affidavit and the application are not finally settled.
It also has an issue of proper or improper authorization.
In that regard, the Government indicated that we have all the normal papers.
We have got none of the affidavits to determine if this was one of the so-called now Lindenbaum cases.
This case was decided in the District Court in November of 1971.
The leading Robinson case referring to the Lindenbaum case affidavits was some six months later.
So, those are battles that we have yet to fight and I make reference to this only because the Government has indicated that we got all the customary papers.
Again, and this might have been a misstatement, he said that the indictment had been dismissed.
On the contrary, that evidence has been suppressed but the indictment continues to be viable.
The trial court merely suppressed the evidence that Minnie Kahn had on her about March 21, 1970 and, particularly some conversations she had with Irving Kahn on that date.
He was in Arizona.
She was in Skokie, Illinois.
This was at the trial court level, suppressed principally upon the husband and wife privilege.
Secondly, it was suppressed on the ground that Minnie, though a known person, was not named in the authorization order.
Particularly, the trial court found, and this is at page 52 of the appendix in the Court of Appeals.
Any conversations exclusively between the defendant Irving Kahn and his wife Minnie Kahn a privilege of communications and, thereby, suppressed.
The motion of the defendant Minnie Kahn to suppress her intercepted conversations is granted as they were not authorized by Judge Campbell’s order.
The motion the defendant Irving Kahn to suppress intercepted conversations to or from his home is also granted to the extent that he did not personally participate in such conversations.
Now, these three are the basis of the Government’s appeal from the trial court.
Now, we would refer the Court to the decision of the Court of Appeals.
There, we had three separate decisions. The majority holding that the non-Irving communications were not authorized.
One judge agreed with the trial court that the Minnie-Irving conversations were privileged and recognized as such by the statute as privileged and should’ve been excluded.
Neither the tapes nor the report that was delivered to the trial court was any part of this record, I meant to the authorizing court, was any part of the record at the trial court level nor at the Court of Appeals level.
Mr. Justice Stewart asked yesterday about that.
The answer to your question is the report about which you asked was filed in this Court for the first time.
There is nothing in the record to even suggest the content of the marital conversations.
Now, in this posture and with due recognition that this is, I believe, the first Title III case before this Court, we have the further recognition that will be followed by more sophisticated arguments on Title III.
We do see in this case a basic constitutional issue.
If, as the Government urges, we were to equate Title III conversations with the Fourteenth Amendment -- the Fourth Amendment, this Court has to decide whether a conversation is the equivalent of a place to be searched or whether those conversations are an incident or an element of the person.
The Government’s argument tends to ask you to equate a telephone with the premises to be searched.
We submit, on the other hand, that a telephone conversation is the property of the person, not of the phone, of the person whose thoughts, whose ideas, whose reactions are reflected by that conversation.
We submit that a telephone is not a premises.
It’s not an enclave.
It’s not a cartilage.
The phone retains no property.
It’s only the wiretap that retains the personal utterances.
In that respect, we think there’s also a quality of the Fifth Amendment in this case because the goal of the wiretap is the securing of incriminating statements of persons names in the order.
They don’t listen for innocent conversations and accidentally come across evidence or instrumentalities of crime.
Chief Justice Warren E. Burger: What would you have to say about the question I put to Mr. Frey?
If -- let’s change it a little bit. Suppose Mr. Kahn hired one of the people who were in his organization to come and work at his house, someone not named in the authorization or the order.
And his conversations with people placing bets are overheard, admissible or not admissible?
Ms Anna R. Lavin: Not admissible.
Chief Justice Warren E. Burger: And why?
Ms Anna R. Lavin: Our position is that this would take us, of course, to the application and to the affidavit which we reach later.
And that is that Mr. Kahn, at the time of this conversation, was off the premises.
Now, let us assume he’s on the premises and someone else takes over the phone, and enough is heard accidentally in that case to determine that someone else is now involved with him in the gambling operation.
But under the circumstances in this case where he was not on the premises, then the information secured would not be admissible because it had not been pursuant to the order nor had it been -- nor had any order been obtained on probable cause.
But we have to look at that in the posture of this case.
The La Gorga case that the Government adverts to is, I think, fairly applicable here.
In that case, two of the principals were known to visit a certain health club.
An order issued and it said you may listen in on the phone at the health club, but you may only listen when one or both of the known persons are on the premises and when one or the other of the known person is involved in the conversation.
In other words, I think the important distinction here is Mr. Kahn’s being off the premises.
If I may just finish up the thought, I suggest that this is an invasion of the person, I would also suggest that Congress understood this to be an invasion of the person when it specifically excluded any privileged conversations.
Now, of course, privileged conversations do not refer to premises.
They refer only to people.
Now, I would like to go, if the Court please, to persons unknown and whether Minnie Kahn can be brought within the shelter of persons unknown.
I want to refer you first, if I may, to the affidavit which is found at Page 9 of the Appendix before this Court.
At 3 (a), they state this.
“There is probable cause for a belief that Irving Kahn and Jake Jacobs have been and are now committing an offense involving the use of telephone communication facilities in interstate commerce with intent to carry on the offensive waitering (ph) on sports events in violation of Illinois law.”
Then on the next page, the affidavit says, “There’s probable cause to believe the telephone numbers and the numbers at the Kahn residence and telephone numbers at the Jacob’s residence are being used and will be used in carrying out the offenses of paragraph 3 (a)", which I just read.
The affidavit continues, in effect, finding how this operation is run by Kahn and how it is run by Jacobs.
No one else is adverted to as being a part of this operation.
The only persons who are referred to thereafter are bettors and linesman.
I don’t mean linesman in the sense of football.
So eventually, without another word being said about parties unknown, we come to the last paragraph on Page 20 where the request is made.
It is requested, this intercept not terminate etcetera, to reveal the manner in which Irving Kahn, Jake Jacobs, and others yet unknown participate in the illegal use of interstate telephone facilities.
Justice Potter Stewart: Where were you reading from?
Just now you said --
Ms Anna R. Lavin: That, sir, is from Page 20.
Justice Potter Stewart: 20 of the Appendix?
Ms Anna R. Lavin: Down at the -- starting at the bottom of 19 onto 20.
The only persons who could fit into that description, I submit, are the bettors and the linesman who were adverted to in the earlier part of the affidavit.
Now, I think the Government --
Chief Justice Warren E. Burger: You’ve gone a little too fast for me there.
Ms Anna R. Lavin: Yes, sir.
Chief Justice Warren E. Burger: At the top of page 20, are you telling us that the words “and others as yet unknown participate in the illegal use of the interstate facilities,” and so forth, excludes anyone in the Kahn house?
Ms Anna R. Lavin: Nobody is mentioned in the entire affidavit from the Kahn house.
The only persons --
Chief Justice Warren E. Burger: Mr. Kahn is mentioned, isn’t he?
Ms Anna R. Lavin: Mr. Kahn, yes, he’s mentioned.
Chief Justice Warren E. Burger: It’s his house and his telephone.
Ms Anna R. Lavin: That’s right.
Chief Justice Warren E. Burger: And the allegations are, in the affidavit, that he’s the man who’s conducting this illegal enterprise.
Ms Anna R. Lavin: That’s right.
Chief Justice Warren E. Burger: And then there’s the blanket phrase and all other persons unknown.
And of course that assumes, in part at least, that a great many people impossible then to be identified are going to be calling in.
Ms Anna R. Lavin: Calling in, that’s right.
Chief Justice Warren E. Burger: These are the bettors.
Ms Anna R. Lavin: The bettors.
Chief Justice Warren E. Burger: Do you say it excludes his confederates in the conspiracy if they call in to talk about the details?
Ms Anna R. Lavin: Oh! No, I do not.
No, I certainly don’t mean if his confederates in the conspiracy called in that they would be excluded, but --
Chief Justice Warren E. Burger: And do you say it excludes his helpers who come to his house to answer the phone?
Ms Anna R. Lavin: And I say if he’s on the premises and they pick up a call of that nature, that is a -- shows itself to be a part of this conspiracy, that would be permissible.
Chief Justice Warren E. Burger: The evidence would be admissible?
Ms Anna R. Lavin: Yes, sir.
Chief Justice Warren E. Burger: But not Mrs. Kahn?
Ms Anna R. Lavin: Not Mrs. Kahn on the posture of this case.
Chief Justice Warren E. Burger: How do you distinguish Mrs. Kahn from one of his other helpers?
Ms Anna R. Lavin: Well, I think we can do that from the record knowing, of course, and starting with the predicate that not one word was said about Mrs. Kahn in any of the affidavits.
The Government recognized in its argument the elimination of Mrs. Kahn from any probable cause.
It then argues in this fashion, and this is at Page 26 of its brief in chief.
Since Mr. Kahn could hardly be assumed to be invariably at home and available, someone would be expecting on occasion to receive calls relating to the business on his telephones.
But that is belied by the Appendix which states at Page 11, first paragraph, “Kahn’s bettors contact either Kahn or Jacobs and place their bets.
When Kahn is out of town and/or vacationing, all bettors with call Jacobs, and vice versa.”
Justice Thurgood Marshall: I understand the Government’s position to be that they knew Mrs. Kahn was there.
They were aware that there was a Mrs. Kahn, but they were not aware that she was in this syndicate.
Ms Anna R. Lavin: That is the Government’s position and --
Justice Thurgood Marshall: Now, what’s wrong with that position?
Ms Anna R. Lavin: Well, we submit to the Court that it does not satisfy the statute.
That it’s a contortion or a distortion of the words on the requirements for the securing of an order.
The statute --
Chief Justice Warren E. Burger: You mean the unknown --
Justice Thurgood Marshall: Are you saying that the order would have to include the wife and all of the children?
So if there was a family with 16 children, it would have to include all of them?
Ms Anna R. Lavin: No, sir, but by exclusion it’s indicated that there’s no probable grounds or probable cause to listen into their private conversations.
Justice Thurgood Marshall: I know, probably --
Ms Anna R. Lavin: Well, Your Honor, the --
Justice Thurgood Marshall: Just the word “unknown,” sure she’s known.
Anybody could know all that just by picking up a telephone book.
Ms Anna R. Lavin: And the argument of the Government is the identity of the person, if known, whose communications are to be intercepted as the statute reads.
Justice Thurgood Marshall: The Government assumed that what she’d be talking over the phone would be ordering food, and she doesn’t --
Ms Anna R. Lavin: Yes.
Justice Thurgood Marshall: But all along, they found out it was unknown.
But they didn’t know that when they had gotten this indictment.
Ms Anna R. Lavin: When they got the order, they did --
Justice Thurgood Marshall: I mean the -- I meant the search warrant.
Ms Anna R. Lavin: But should they have been listening to her ordering meat, I submit that they should not have and --
Justice Thurgood Marshall: Well, I thought that the order said that.
The order said you should not listen to other matters.
Ms Anna R. Lavin: That’s right.
Justice Thurgood Marshall: So, when the order was issued, she wasn’t affected at all, was she?
Ms Anna R. Lavin: That’s right, she wasn’t.
Justice Thurgood Marshall: Unless she was in the conspiracy.
Ms Anna R. Lavin: It appears that she was handling some gambling business.
That’s right, but they had no basis for listening to her.
The Government argues that this should be excused.
I submit that it should not.
But they say it should be excuse because they can get one of these orders without naming anybody.
Well, that means that they don’t know anybody to name.
I think the wording of the five requirements is beyond question.
You can’t say “the name of the person, if known.”
They don’t say “the name of the person, if known, could be in the gambling business.”
They say “the name of the person, if known,” and I suggest that it’s a distortion of the plain words of the statute to amend it to say “you have to name the person if you know.
Only, you don’t have to name him if you don’t know if he’s in the business.”
The requirements of that statute, both the name of the person, if known, and the four other requirements are mandatory conditions.
They are set forth in the statute, we think, to meet the precision and discrimination discussed by this Court in Katz, where this Court said that, under sufficiently precise and discriminate circumstances, a Federal Court may empower government agents to employ a concealed electronic device for the narrow and particularized purpose of ascertaining the truth of the allegations of a detailed factual affidavit alleging the commission of a particular offense.
If any of those requirements are omitted, the warrant itself loses, or rather the order itself loses precision and the discrimination that is required by this Court under Katz.
Also, you don’t have the other requirement of Katz, the narrow and particularized purpose, nor are you looking here for the truth of the allegations as to whether or not Katz is running a betting operation on his premises.
This listening indiscriminately to the conversations of the children and of the wife would not lead to the end that is indicated as the purpose under the Katz case.
The Government, in its argument, in its brief -- both the brief and in its argument here, relies in great measure on the “plain view” doctrine that this Court discussed in the Coolidge case.
As that court found -- as this Court found in that case, it said that the doctrine was not applicable to a search of a particular Pontiac automobile which stood plainly in the driveway.
We suggest that should also apply here where the search centered on Minnie Kahn, and Minnie Kahn and their two children were known occupants of the premises.
In Coolidge, you said the “plain view” doctrine may not be used to extend the general exploratory search from one object to another until something incriminating at last emerges.
Well, we submit to the Court that if you can’t extend from one object to another, then we don’t think you can extend from Irving Kahn to Minnie Kahn.
I also would take up with the Court the matter of notice.
In our fourth point in our brief, we complained about the secrecy of these court-authorized interception proceedings.
Most particularly, we complained about having no access to files to determine in this case whether a notice in inventory was served on Minnie Kahn which we think would’ve been a recognition that Minnie Kahn was within the scope of the authorizing letter.
The Government says that Minnie wasn’t mentioned in the order and, therefore, notice in inventory need only be served upon her in the court’s discretion.
We take that, of course, to admit that Minnie didn’t in fact get any notice even though it was her conversations principally, not Irving’s, on that phone that the Government intends to use to prove the case here.
And even thought the Government ask this Court to unsuppress that evidence, it seems to us that this is kind of a “later day” explanation that a known person, though not known to be in a gambling business, was definitely to a person to whom this notice was required.
The Government excuses this in a way.
It says Minnie Kahn received a notice sent to Irving.
Now, that’s a little off the record, but I’m willing to assume the validity of that representation.
All the cases of which we are aware indicate that this notice is made by a registered mail and, for the purpose of this we will assume that Minnie received the mail.
But the Government asks the Court further to assume, first, that Minnie opened the mail or that Irving is presumed to have told Minnie what was in the letter from the Government.
I think that’s untenable that while wives do not invariably open husband’s mail and husbands do not tell wives they’re having trouble with the Government until they’re forced to do it.
The Ianella case on which the Government relies has no force here.
In that case, the other persons were actually unknown persons, unknown at the time they put in the wiretap.
This person using the phone to the exclusion of the named person.
We would then refer the court to the Third Circuit Eastman case at 465 F. 2d.
There, a suppression order issued and it was affirmed for failure to give the statutory notice.
In that case, they relied principally in this Court’s decision in Berger which cast down a New York eavesdropping statute for failure to provide for the giving of notice.
In this case, though the bulk of the conversations were Minnie’s, the Government would have us read this statute that notice need not be given to Minnie from whom the property was taken.
We suggest to the Court that that does not equate with the Fourth Amendment even if it does equate with the literal reading of 2518 (8) (d).
If that Section can be so narrowly construed, like a person from whom the telephone calls were taken need not be given notice, then it doesn’t meet the requirements of this court’s decision in Berger and, under such a construction, we would submit that the statute is unconstitutional.
I see that my time is going and I would just like to refer the Court to the Government cited case, the United States versus La Gorga at 365 F. 2d or rather F. 7h.
It gives us a background against which the legislature intended Title III to be considered.
And in speaking of the privacy insured by the Fourth Amendment, it said that privacy can be breached by a search warrant under conditions set out in the amendment.
Factually, the wiretapping permitted by the Omnibus Crime Control Act is severely limited and the Act actually prohibits far more wiretapping than it permits.
I submit then to the Court, in closing, that wiretapping and any expansion on the order should be given a negative rather than a positive reception and should be countenanced only in circumstances that clearly warranted, and this is not such a case.
We urge the Court to affirm the decision of the Seventh Circuit.
Chief Justice Warren E. Burger: Mr. Frey, do you have anything further?
Rebuttal of Frey
Mr. Frey: A few things, Mr. Chief Justice.
First of all, of course, I’d like to point out that there’s no Fifth Amendment problem in this case since there was no compelled statement or testimony of any sort.
Secondly, with respect to the La Gorga case, the Health Club case that counsel adverted to, public phones, phones in public places are different from phones in a private home.
Katz case involved a public phone.
There was, indeed, an amendment proposed to Congress to this Bill and which was recommended by the Justice Department but which was never voted on or adopted which, in the case of public phones, would’ve permitted only the interception of conversations of the named party.
For obvious reasons, you would have no basis for expecting to receive any information relating to your investigation from conversations on a public phone except by those of the named party.
That is not at all true in this situation where you’re intercepting conversations over a private phone.
Frequently, in these cases, there are organized crime cases; you’re dealing with sophisticated conspiracies.
It’s not uncommon particularly in narcotics cases to have two quite innocent people start a conversation and then, in the middle of the conversation, all of a sudden you have two completely different people who are on the phone talking in code about narcotics transactions.
In this case, indeed, some of the conversations were in Yiddish between Irving and Minnie Kahn.
With respect to what’s in the record and what isn’t in the record that is a little confusing.
The record in the wire interception authorization proceeding, which is technically a civil proceeding, was sealed and it did go up to the Court of Appeals, and technically, the tapes of the recordings were part of the record.
In fact, I think neither the District Court nor the Court of Appeals listened to any of the conversations or relied upon the content of any of the conversations, the specific content, in reaching its decisions.
Now, the notice issue which counsel discussed is, of course, not before this Court or was not involved in the grant of certiorari.
Moreover, it’s clear that the District Court has discretion to require notice, service of the inventory notice, except to the named party.
Here, the named party was Irving Kahn.
He received service of the notice.
There was no defect in that regard.
And finally, with respect to the standing point, it is true that the statute defines a person aggrieved quite broadly for standing purposes.
But we’ve indicated in our brief our position, we think this is supported by the discussion in Alderman, that the target of the interception, the person whose phone is being intercepted is conferred broad standing for the purpose of challenging the legality of the entry onto his telephone line just as the home owner is conferred broad standing for the purpose of challenging the entry into his house.
If something illegal inside his house or on the line is found but only affects another person, he should not be granted standing to challenge it.
Therefore, we submit that the judgment of the Court of Appeals should be reversed.
Chief Justice Warren E. Burger: Thank you, Mr. Frey.
Thank you, Ms. Lavin.
The case is submitted.