Berger v. New York/Opinion of the Court
This writ tests the validity of New York's permissive eavesdrop statute, N.Y. Code Crim.Proc. § 813-a,  under the Fourth, Fifth, Ninth, and Fourteenth Amendments. The claim is that the statute sets up a system of surveillance which involves trespassory intrusions into private, constitutionally protected premises, authorizes 'generalse arches' for 'mere evidence,'  and is an invasion of the privilege against self-incrimination. The trial court upheld the statute, the Appellate Division affirmed without opinion, 25 A.D.2d 718, 269 N.Y.S.2d 368, and the Court of Appeals did likewise by a divided vote. 18 N.Y.2d 638, 272 N.Y.S.2d 782, 219 N.E.2d 295. We granted certiorari, 385 U.S. 967, 87 S.Ct. 505, 17 L.Ed.2d 432 (1966). We have concluded that the language of New York's statute is too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and is, therefore, violative of the Fourth and Fourteenth Amendments. This disposition obviates the necessity for any discussion of the other points raised.
Berger, the petitioner, was convicted on two counts of conspiracy to bribe the Chairman of the New York State Liquor Authority. The case arose out of the complaint of one Ralph Pansini to the District Attorney's office that agents of the State Liquor Authority had entered his bar and grill and without cause seized his books and records. Pansini asserted that the raid was in reprisal for his failure to pay a bribe for a liquor license. Numerous complaints had been filed with the District Attorney's office charging the payment of bribes by applicants for liquor licenses. On the direction of that office, Pansini, while equipped with a "minifon" recording device, interviewed an employee of the Authority. The employee advised Pansini that the price for a license was $10,000 and suggested that he contact attorney Harry Neyer. Neyer subsequently told Pansini that he worked with the Authority employee before and that the latter was aware of the going rate on liquor licenses downtown.
On the basis of this evidence an eavesdrop order was obtained from a Justice of the State Supreme Court, as provided by § 813-a. The order permitted the installation, for a period of 60 days, of r ecording device in Neyer's office. On the basis of leads obtained from this eavesdrop a second order permitting the installation, for a like period, of a recording device in the office of one Harry Steinman was obtained. After some two weeks of eavesdropping a conspiracy was uncovered involving the issuance of liquor licenses for the Playboy and Tenement Clubs, both of New York City. Petitioner was indicted as 'a go-between' for the principal conspirators, who though not named in the indictment were disclosed in a bill of particulars. Relevant portions of the recordings were received in evidence at the trial and were played to the jury, all over the objection of the petitioner. The parties have stipulated that the District Attorney 'had no information upon which to proceed to present a case to the Grand Jury, or on the basis of which to prosecute' the petitioner except by the use of the eavesdrop evidence.
Eavesdropping is an ancient practice which at common law was condemned as a nuisance. 4 Blackstone, Commentaries 168. At one time the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse. The awkwardness and undignified manner of this method as well as its susceptibility to abuse was immediately recognized. Electricity, however, provided a better vehicle and with the advent of the telegraph surreptitious interception of messages began. As early as 1862 California found it necessary to prohibit the practice by statute. Statutes of California 1862, p. 288, CCLX II. During the Civil War General J. E. B. Stuart is reputed to have had his own eavesdropper along with him in the field whose job it was to intercept military communications of the opposing forces. Subsequently newspapers reportedly raided one another's news gathering lines to save energy, time, and money. Racing news was likewise intercepted and flashed to bettors before the official result arrived.
The telephone brought on a new and more modern eavesdropper known as the "wiretapper." Interception was made by a connection with a telephone line. This activity has been with us for three-quarters of a century. Like its cousins, wiretapping proved to be a commercial as well as a police technique. Illinois outlawed it in 1895 and in 1905 California extended its telegraph interception prohibition to the telephone. Some 50 years ago a New York legislative committee found that police, in cooperation with the telephone company, had been tapping telephone lines in New York despite an Act passed in 1895 prohibiting it. During prohibition days wiretaps were the principal source of information relied upon by the police as the basis for prosecutions. In 1934 the Congress outlawed the interception without authorization, and the divulging or publishing of the contents of wiretaps by passing § 605 of the Communications Act of 1934.  New York, in 1938, declared by constitutional amendment that "(t)he right of the people to be secured against unreasonable interception of telephone and telegraph communications shall not be violated," but permitted by ex parte order of the Supreme Court of the State the interception of communications on a showing of "reasonable ground to believe that evidence of crime" might be obtained. N.Y.Const. Art. I, § 12.
Sophisticated electronic devices have now been developed (commonly known as "bugs") which are capable of eavesdropping on anyone in most any given situation. They are to be distinguished from "wiretaps" which are confined to the interception of telegraphic and telephonic communications. Miniature in size (3/8 3/8 1/8 )-no larger than a postage stamp these gadgets pick up whispers within a room and broadcast them half a block away to a receiver. It is said that certain types of electronic rays beamed at walls or glass windows are capable of catching voice vibrations as they are bounced off the surfaces. Since 1940 eaes dropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control. A microphone concealed in a book, a lamp, or other unsuspected place in a room, or made into a fountain pen, tie clasp, lapel button, or cuff link increases the range of these powerful wireless transmitters to a half mile. Receivers pick up the transmission with interference-free reception on a special wave frequency. And, of late, a combination mirror transmitter has been developed which permits not only sight but voice transmission up to 300 feet. Likewise, parabolic microphones, which can overhear conversations without being placed within the premises monitored, have been developed. See Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's, 66 Col.L.Rev. 1003, 1005-1010.
As science developed these detection techniques, law makers, sensing the resulting invasion of individual privacy, have provided some statutory protection for the public. Seven states, California, Illinois, Maryland, Massachusetts, Nevada, New York, and Oregon, prohibit surreptitious eavesdropping by mechanical or electronic device.  However, all save Illinois permit official courtordered eavesdropping. Some 36 states prohibit wiretapping.  But of these, 27 permit 'authorized' interception of some type. Federal law, as we have seen, prohibits interception and divulging or publishing of the content of wiretaps without exception.  In sum, it is fair to say that wiretapping on the whole is outlawed, except for permissive use by law enforcement officials in some states; while electronic eaesdropping is-save for seven states-permitted both officially and privately. And, in six of the seven states, electronic eavesdropping ('bugging') is permissible on court order.
The law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge. This is not to say that individual privacy has been relegated to a second-class position for it has been held since Lord Camden's day that intrusions into it are "subversive of all the comforts of society." Entick v. Carrington, 19 How.St.Tr. 1029, 1066 (1765). And the Founders so decided a quarter of a century later when they declared in the Fourth Amendment that the people had a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." Indeed, that right, they wrote, "shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Almost a century thereafter this Court took specific and lengthy notice of Entick v. Carrington, supra, finding that its holding was undoubtedly familiar in the minds of those who framed the fourth amendment * * *. Boyd v. United States, 116 U.S. 616, 626-627, 6 S.Ct. 524, 530, 29 L.Ed. 746 (1886). And after quoting from Lord Camden's opinion at some length, Mr. Justice Bradley characterized it thus:
"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case * * * they apply to all invasions on the part of the government and its employe § of the sanctity of a man's home and the privacies of life." At 630, 6 S.Ct. at 532.
Boyd held unconstitutional an Act of the Congress authorizing a court of the United States to require a defendant in a revenue case to produce in court his private books, invoices, and papers or else the allegations of the Government were to be taken as confessed. The Court found that "the essence of the offense * * * (was) the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment." Ibid. The Act the Court found-violated the Fourth Amendment in that it authorized a general search contrary to the Amendment's guarantee.
The Amendment, however, carried no criminal sanction, and the federal statutes not affording one, the Court in 1914 formulated and pronounced the federal exclusionary rule in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Prohibiting the use in federal courts of any evidence seized in violation of the Amendment, the Court held:
"The effect of the 4th Amendment is to put the courts of the United States * * * under limitations and restraints as to the exercise of such power * * * and to forever secure the people * * * against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all * * *. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures * * * should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights." At 391-392, 34 S.Ct. at 344.
The Court was faced with its first wiretap case in 1928, Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944. There the interception of Olmstead's telephone line was accomplished without entry upon his premises and was, therefore, found not to be proscribed by the Fourth Amendment. The basis of the decision was that the Constitution did not forbid the obtaining of evidence by wiretapping unless it involved actual unlawful entry into the house. Statements in the opinion that a conversation passing over a telephone wire cannot be said to come within the Fourth Amendment's enumeration of 'persons, houses, papers, and effects' have been negated by our subsequent cases as hereinafter noted. They found 'conversation' was within the Fourth Amendment's protections, and that the use of electronic devices to capture it was a 'search' within the meaning of the Amendment, and we so hold. In any event, Congress soon thereafter, and some say in answer to Olmstead, specifically prohibited the interception without authorization and the divulging or publishing of the contents of telephonic communications. And the Nardone cases (Nardone v. United States), 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937) and 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), extended the exclusionary rule to wiretap evidence offered in federal prosecutions.
The first "bugging" case reached the Court in 1942 in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322. There the Court found that the use of a detectaphone placed against an office wall in order to hear private conversations in the office next door did not violate the Fourth Amendment because there was no physical trespass in connection with the relevant interception. And in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), we found that since "no trespass was committed" a conversation between Lee and a federal agent, occurring in the former's laundry and electronically recorded, was not condemned by the Fourth Amendment. Thereafter in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), the Court found "that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners." At 509, 81 S.Ct. at 681. A spike a foot long with a microphone attached to it was inserted under a baseboard into a party wall until it made contact with the heating duct that ran through the entire house occupied by Silverman, making a perfect sounding board through which the conversations in question were overheard. Significantly, the Court held that its decision did "not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area." At 512, 81 S.Ct. at 683.
In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court for the first time specifically held that verbal evidence may be the fruit of official illegality under the Fourth Amendment along with the more common tangible fruits of unwarranted intrusion. It used these words:
"The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects.' " At 485, 83 S.Ct. at 416.
And in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), the Court confirmed that it had "in the past sustained instances of "electronic eavesdropping" against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. * * * It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area." At 438-439, 83 S.Ct. at 1387. In this case a recording of a conversation between a federal agent and the petitioner in which the latter offered the agent a bribe was admitted in evidence. Rather than constituting "eavesdropping" the Court found that the recording "was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose." At 439, 83 S.Ct. at 1388.
It is now well settled that "the Fourth Amendment's right of privacy has bee d eclared enforceable against the States through the Due Process Clause of the Fourteenth" Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). 'The security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society.' Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). And its "fundamental protections * * * are guaranteed * * * against invasion by the States." Stanford v. State of Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431 (1965). This right has most recently received enunciation in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930. "The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." At 528, 87 S.Ct. at 1730. Likewise the Court has decided that while the "standards of reasonableness" required under the Fourth Amendment are the same under the Fourteenth, they "are not susceptible of Procrustean application * * *." Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963). We said there that "the reasonableness of a search is * * * (to be determined) by the trial court from the facts and circumstances of the case and in the light of the "fundamental criteria" laid down by the Fourth Amendment and in opinions of this Court applying that Amendment." Ibid.
We, therefore, turn to New York's statute to determine the basis of the search and seizure authorized by it upon the order of a state supreme court justice, a county judge or general sessions judge of New York County. Section 813-a authorizes the issuance of an "ex parte order for eavesdropping" upon "oath or affirmation of a district attorney, or of the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof * * *." The oath must state "that there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and * * * identifying the particular telephone number or telegraph line involved." The judge "may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application." The order must specify the duration of the eavesdrop not exceeding two months unless extended-and "(a)ny 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."
While New York's statute satisfies the Fourth Amendment's requirement that a neutral and detached authority be interposed between the police and the public, Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), the broad sweep of the statute is immediately observable. It permits the issuance of the order, or warrant for eavesdropping, upon the oath of the attorney general, the district attorney or any police officer above the rank of sergeant stating that "there is reasonable ground to believe that evidence of crime may be thus obtained * * *." Such a requirement raises a serious probablecause question under the Fourth Amendment. Under it warrants may only issue "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629 (1931); Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949).
It is said, however, by the petitioner, and the State agrees, that the "reasonable ground" requirement of § 813-a "is undisputedly equivalent to the probable cause requirement of the Fourth Amendment." This is indicated by People v. Grossman, 45 Misc.2d 557, 257 N.Y.S.2d 266, reversed on other grounds, 27 A.D.2d 572, 276 N.Y.S.2d 168. Also see People v. Beshany, 43 Misc.2d 521, 252 N.Y.S.2d 110. While we have found no case on the point by New York's highest court, we need not pursue the question further because we have concluded that the statute is deficient on its face in other respects. Since petitioner clearly has standing to challenge the statute, being indisputably affected by it, we need not consider either the sufficiency of the affidavits upon which the eavesdrop orders were based, or the standing of petitioner to attack the search and seizure made thereunder.
The Fourth Amendment commands that a warrant issue not only upon probable cause supported by oath or affirmation, but also "particularly describing the place to be searched, and the persons or things to be seized." New York's statute lacks this particularization. It merely says that a warrant may issue on reasonable ground to believe that evidence of crime may be obtained by the eavesdrop. It lays down no requirement for particularity in the warrant as to what specific crime has been or is being committed, nor "the place to be searched," or "the persons or things to be seized" as specifically required by the Fourth Amendment. The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping. By its very nature eavesdropping involves an intrusion on privacy that is broad in scope. As was said in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), the 'indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments,' and imposes "a heavier responsibility on this Court in its supervision of the fairness of procedures * * *." At 329, n. 7, 87 S.Ct. at 433. There, two judges acting jointly authorized the installation of a device on the person of a prospective witness to record conversations between him and an attorney for a defendant then on trial in the United States District Court. The judicial authorization was based on an affidavit of the witness setting out in detail previous conversations between the witness and the attorney concerning the bribery of jurors in the case. The recording device was, as the Court said, authorized "under the most precise and discriminate circumstances, circumstances which fully met the 'requirement of particularity' " of the Fourth Amendment. The Court was asked to exclude the evidence of the recording of the conversations seized pursuant to the order on constitutional grounds, Weeks v. United States supra, or in the exercise of supervisory power, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). The Court refused to do so finding that the recording, although an invasion of the privacy protected by the Fourth Amendment, was admissible because of the authorization of the judges, based upon "a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice * * * for the narrow and particularized purpose of ascertaining the truth of the affidavit's allegations." At 330, 87 S.Ct. at 433. The invasion was lawful because there was sufficient proof to obtain a search warrant to make the search for the limited purpose outlined in the order of he judges. Through these "precise and discriminate" procedures the order authorizing the use of the electronic device afforded similar protections to those that are present in the use of conventional warrants authorizing the seizure of tangible evidence. Among other safeguards, the order described the type of conversation sought with particularity, thus indicating the specific objective of the Government in entering the constitutionally protected area and the limitations placed upon the officer executing the warrant. Under it the officer could not search unauthorized areas; likewise, once the property sought, and for which the order was issued, was found the officer could not use the order as a passkey to further search. In addition, the order authorized one limited intrusion rather than a series or a continuous surveillance. And, we note that a new order was issued when the officer sought to resume the search and probable cause was shown for the succeeding one. Moreover, the order was executed by the officer with dispatch, not over a prolonged and extended period. In this manner no greater invasion of privacy was permitted than was necessary under the circumstances. Finally the officer was required to and did make a return on the order showing how it was executed and what was seized. Through these strict precautions the danger of an unlawful search and seizure was minimized.
By contrast, New York's statute lays down no such "precise and discriminate" requirements. Indeed, it authorizes the "indiscriminate use" of electronic devices as specifically condemned in Osborn. "The proceeding by search warrant is a drastic one," Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932), and must be carefully circumscribed so as to prevent unauthorized invasions of "the sanctity of a man's home and the privacies of life." Boyd v. United States, supra, 116 U.S. 616, 630, 6 S.Ct. 524, 532. New York's broadside authorization rather than being "carefully circumscribed" so as to prevent unauthorized invasions of privacy actually permits general searches by electronic devices, the truly offensive character of which was first condemned in Entick v. Carrington, 19 How.St.Tr. 1029, and which were then known as 'general warrants.' The use of the latter was a motivating factor behind the Declaration of Independence. In view of the many cases commenting on the practice it is sufficient here to point out that under these "general warrants" customs officials were given blanket authority to conduct general searches for goods imported to the Colonies in violation of the tax laws of the Crown. The Fourth Amendment's requirement that a warrant "particularly describ(e) the place to be searched, and the persons or things to be seized," repudiated these general warrants and "makes general searches * * * impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927); Stanford v. State of Texas, supra.
We believe the statute here is equally offensive. First, as we have mentioned, eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the "property" sought, the conversations, be particularly described. The purpose of the probablecause requirement of the Fourth Amendment, to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed, is thereby wholly aborted. Likewise the statute's failure to describe with particularity the conversations sought gives the officer a roving commission to "seize" any and all conversations. It is true that the statute requires the naming of "the person or persons whose communications, conversations or discussions are to be overheard or recorded * * *." But ths does no more than identify the person whose constitutionally protected area is to be invaded rather than "particularly describing" the communications, conversations, or discussions to be seized. As with general warrants this leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits, and there were authorized here, extensions of the original two-month period-presumably for two months each-on a mere showing that such extension is "in the public interest." Apparently the original grounds on which the eavesdrop order was initially issued also form the basis of the renewal. This we believe insufficient without a showing of present probable cause for the continuance of the eavesdrop. Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. This is left entirely in the discretion of the officer. Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits uncontested entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.
It is said with fervor that electronic eavesdropping is a most important technique of law enforcement and that outlawing it will severely cripple crime detection. The monumental report of the President's Commission on Law Enforcement and Administration of Justice entitled "The Challenge of Crime in a Free Society" informs us that the majority of law enforcement officials say that this is especially true in the detection of organized crime. As the Commission reports, there can be no question about the serious proportions of professional criminal activity in this country. However, we have found no empirical statistics on the use of electronic devices (bugging) in the fight against organized crime. Indeed, there are even figures available in the wiretap category which indicate to the contrary. See District Attorney Silver's Poll of New York Prosecutors, in Dash, Schwartz & Knowlton. The Eavesdroppers 105, 117-119 (1959). Also see Semerjian, Proposals on Wiretapping in Light of Recent Senate Hearings, 45 B.U.L.Rev. 217, 229. As the Commission points out, "(w)iretapping was the mainstay of the New York attack against organized crime until Federal court decisions intervened. Recently chief reliance in some offices has been placed on bugging, where the information is to be used in court. Law enforcement officials believe that the successes achieved in some parts of the State are attributable primarily to a combination of dedicated and competent personnel and adequate legal tools; and that the failure to do more in New York has resulted primarily from the failure to commit additional resources of time and men," rather than electronic devices. At 201-202. Moreover, Brooklyn's District Attorney Silver's poll of the State of New York indicates that during the 12-year period (1942-1954) duly authoried wiretaps in bribery and corruption cases constituted only a small percentage of the whole. It indicates that this category involved only 10% of the total wiretaps. The overwhelming majority were in the categories of larceny, extortion, coercion, and blackmail, accounting for almost 50%. Organized gambling was about 11%. Statistics are not available on subsequent years. Dash, Schwartz & Knowlton, supra, at 40.
An often repeated statement of District Attorney Hogan of New York County was made at a hearing before the Senate Judiciary Committee at which he advocated the amendment of the Communications Act of 1934, supra, so as to permit "telephonic interception" of conversations. As he testified, "Federal statutory law (the 1934 Act) has been interpreted in such a way as to bar us from divulging wiretap evidence, even in the courtroom in the course of criminal prosecution." Mr. Hogan then said that "(w)ithout it (wiretaps) my own office could not have convicted" "top figures in the underworld." He then named nine persons his office had convicted and one on whom he had furnished "leads" secured from wiretaps to the authorities of New Jersey. Evidence secured from wiretaps, as Mr. Hogan said, was not admissible in "criminal prosecutions." He was advocating that the Congress adopt a measure that would make it admissible; Hearings on S. 2813 and S. 1495, before the Senate Committee on the Judiciary, 87 Cong., 2d Sess., pp. 173, 174 (1962). The President's Commission also emphasizes in its report the need for wiretapping in the investigation of organized crime because of the telephone's "relatively free use" by those engaged in the business and the difficulty of infiltrating their organizations. P. 201. The Congress, though long importuned, has not amended the 1934 Act to permit it.
We are also advised by the Solicitor General of the United States that the Federal Government has abandoned the use of electronic eavesdropping for "prosecutorial purposes." See Supplemental Memorandum, Schipani v. United States, No. 504, October Term, 1966, 385 U.S. 372, 87 S.Ct. 533, 17 L.Ed.2d 428. See also Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); Hoffa v. United States, 387 U.S. 231, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1967); Markis v. United States (Moretti v. United States) 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864. Despite these actions of the Federal Government there has been no failure of law enforcement in that field.
As The Chief Justice said in concurring in the result in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, "the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; * * * indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments * * *." At 441 of 373 U.S., at 1389 of 83 S.Ct.
In any event we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we require today but a fundamental rule that has long been recognized as basic to the privacy of every home in America. While "(t)he requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement," Lopez v. United States, supra, at 464, 83 S.Ct. at 1404 (dissenting opinion of Brennan, J.), it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices. Some may claim that without the use of such devices crime detection in certain areas may suffer some delays since eavesdropping is quicker, easier, and more certain. However, techniques and practices may well be developed that will operate just as speeil y and certainly and-what is more important-without attending illegality.
It is said that neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements. If that be true then the "fruits" of eavesdropping devices are barred under the Amendment. On the other hand this Court has in the past, under specific conditions and circumstances, sustained the use of eavesdropping devices. See Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270; Lopez v. United States, supra; and Osborn v. United States, supra. In the latter case the eavesdropping device was permitted where the "commission of a specific offense" was charged, its use was "under the most precise and discriminate circumstances" and the effective administration of justice in a federal court was at stake. The States are under no greater restrictions. The Fourth Amendment does not make the "precincts of the home or the office * * * sanctuaries where the law can never reach," Douglas, J., dissenting in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 321, 87 S.Ct. 1642, 1657, 18 L.Ed.2d 782, but it does prescribe a constitutional standard that must be met before official invasion is permissible. Our concern with the statute here is whether its language permits a trespassory invasion of the home or office, by general warrant, contrary to the command of the Fourth Amendment. As it is written, we believe that it does.
- '§ 813-a. Ex parte order for eavesdropping.
- This contention is disposed of in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, adversely to petitioner's assertion here.
- 48 Stat. 1103, 47 U.S.C. § 605.
- Cal.Pen.Code §§ 653h-653j; Ill.Rev.Stat., c. 38, §§ 14-1 to 14-7 (1965); Md.Ann.Code, Art. 27, § 125A (1957); Mass.Gen.Laws, c. 272, § 99 (Supp.1966); Nev.Rev.Stat. § 200.650 (1963); N.Y.Pen.Law, McKinney's Consol.Laws, c. 40, § 738 (Supp.1966); Ore.Rev.Stat. § 165.540(1)(c) (Supp.1965).
- Ala.Code, Tit. 48, § 414 (1958); Alaska Stat. § 42.20.100 (1962); Ark.Stat.Ann. § 73-1810 (1957); Cal.Pen.Code § 640; Colo.Rev.Stat.Ann. § 40-4-17 (1963); Conn.Gen.Stat.Rev. § 53-140 (1958); Del.Code Ann., Tit. 11, § 757 (Supp.1966); Fla.Stat. § 822.10 (1965) F.S.A.; Hawaii Rev.Laws § 309A-1 (Supp.1963); Idaho Code Ann. §§ 18-6704, 18-6705 (1947); Ill.Rev.Stat., c. 134, § 16 (1965); Iowa Code § 716.8 (1962); Ky.Rev.Stat. § 433.430 (1962); La.Rev.Stat. § 14:322 (1950); Md.Ann.Code, Art. 35, §§ 92, 93 (1957); Mass.Gen.Laws, c. 272, § 99 (Supp.1966); Mich.Stat.Ann. § 28.808, C.L.1948, § 750.540 (1954); Mont.Rev.Codes Ann. § 94-3203 (Supp.1965); Neb.Rev.Stat. § 86-328 (1966); Nev.Rev.Stat. §§ 200.620, 200.630 (1963), N.J.S.A.; N.J.Rev.Stat. § 2A:146-1 (1953); N.M.Stat.Ann. § 40A-12-1 (1964); N.Y.Penal Law § 738 (Supp.1966); N.C.Gen.Stat. § 14-155 (1953); N.D.Cent.Code § 8-10-07 (1959); Ohio Rev.Code Ann. § 4931.28 (1954); Okla.Stat., Tit. 21, § 1757 (1961); Ore.Rev.Stat. § 165.540(1) (Supp.1965); Pa.Stat.Ann., Tit. 15, § 2443 (1958); R.I.Gen.Laws Ann. § 11-35-12 (1956); S.D.Code § 13.4519 (1939); Tenn.Code Ann. § 65-2117 (1955); Utah Code Ann. § 76-48-11 (1953); Va.Code Ann. § 18.1-156 (1960 Repl.Vol.); Wis.Stat. § 134.39 (1963); Wyo.Stat.Ann. § 37-259 (1957).
- A recent Federal Communications Commission Regulation, 31 Fed.Reg. 3400, 47 CFR § 2.701, prohibits the use of "a device required to be licensed by section 301 of the Communications Act' for the purpose of eavesdropping. This regulation, however, exempts use under 'lawful authority' by police officers and the sanctions are limited to loss of license and the imposition of a fine. The memorandum accompanying the regulation stated: 'What constitutes a crime under State law reflecting State policy applicable to radio eavesdropping is, of course, unaffected by our rules.' I d., at 3399.