401 U.S. 996
Earle T. COOK
Supreme Court of the United States
March 29, 1971
On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit. The petition for writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting. I would grant the petition on the issue of electronic surveillance. In this criminal prosecution counsel for the defense asked if the Government had obtained any evidence by means of listening devices or electronic eavesdropping. 1 The prosecutor would say only that 'no illegal eavesdropping devices were used.'2 He would not state whether any eavesdropping equipment had been used. 3 The trial judge refused to order the disclosure. 4 On appeal, petitioner contended that the Government must disclose whether there had been electronic surveillance, regardless of its views of the legality. The legality [401 U.S. 996 , 997] of such surveillance was for the court to determine, he argued, and he asked for a hearing to determine if such devices were used. 5 The Government asserted on appeal that 'there was no electronic surveillance involved in this case.' This statement was supported by a letter from the Department of Justice:
Petitioner contended that this letter was far from clear as it did not state which agencies were contacted and only stated that he was not the subject of 'direct' microphone surveillance, suggesting 'indirect' surveillance. The Court of Appeals agreed that the statement of the prosecutor was 'not unequivocal' and that the disclosure should have been made to the trial judge. Yet it affirmed the conviction without further inquiry.
Petitioner contends that he is entitled to a judicial determination of the existence and legality of electronic eavesdropping. He argues that the United States has never stated unequivocally that no electronic eavesdropping occurred. The Solicitor General relies on the letter which I have quoted. Moreover, he indicates that the [401 U.S. 996 , 998] procedure followed below is in accordance with 'statutory procedures now provided with respect to claims of illegal electronic surveillance in proceedings occurring after October 15, 1970. ...' From now on the United States will not even review its files to determine the existence of evidence stemming from electronic surveillance unless the defendant meets the 'burden of raising any issue of illegal electronic surveillance. ...'
The Omnibus Crime Act, 82 Stat. 197, 212, 18 U.S.C. 2510-2520 ( Supp. V), provides for electronic surveillance either on warrants issued by a magistrate, 2516, or on the sole initiative of the designee of the Attorney General who 'reasonably determines' that there is 'an emergency situation' respecting 'conspiratorial activities' which threaten the national security or which involve 'organized crime.' 2518(7). The officer must apply for an order approving the interception within 48 hours, complying with procedures for obtaining an order of authorization. If the application is denied, or approval is not issued before the interception is terminated, the contents of any intercepted communication are to be treated as illegally obtained. 18 U.S.C. 2518(7).
The Act sanctions free use of intercepted information among investigative personnel, 2517(1). It also widely protects 'evidence derived therefrom,' 2517(1)(2)(3), including the giving of testimonial evidence. 6 But any person whose 'wire or oral communication is intercepted, disclosed, or used' in violation of the ways I have enumerated has suit for actual and punitive damages and reasonable attorneys' fees and costs. 2520. [401 U.S. 996 , 999] The issue of 'illegality' raised by the Government's defense would raise a myriad of questions depending on the facts. They would pertain to the question of whether the showing required by 2518(1) of the Act had been made to the magistrate and raise the basic question whether, if a magistrate issued a warrant, there was 'probable cause,' 2518(3). If there were a warrant, the question would also be whether the 'search' was confined to the person, place, and time which were authorized. 2518(4)(5 ). If there were no warrant but only the action of the Attorney General under 2518(7), a host of different questions would be raised on the issue of 'illegality.'
These are new questions not yet decided under the new Act. They are important questions involving high matters of policy. They will affect many cases. It is appropriate that we reach the questions here and now, so that the procedures to be used in protecting the rights of the citizen and confining the prosecution within constitutional bounds be resolved.
While Alderman v. United States, 394 U.S. 165 d 176, was pending here, it was revealed that the United States had engaged in wiretapping which may have violated the Fourth Amendment and tainted the convictions of petitioner. We had earlier refused to accept 'the ex parte determination' of the issues by the Department of Justice Kolod v. United States, 390 U.S. 136, 137 , and in Alderman worked out the procedures whereby the District Court would determine whether the evidence obtained was 'the product of illegal surveillance.' 394 U.S., at 168 . The questions in that case concerned the [401 U.S. 996 , 1000] use of 'evidence originating in electronic surveillance violative of his own Fourth Amendment right to be free of unreasonable searches and seizures.' Id., at 176. That is the question here and is obviously not controlled by administrative practice or the Omnibus Crime Act, both of which are subordinate to the Constitution.
The procedure to be designed here is not relevant only to criminals.
Electronic surveillance is today common and pervasive, as we know from reports filed pursuant to 2519(3) of the Act7 and from various Senate and House investiga- [401 U.S. 996 , 1001] tions, including the one just concluded by Senator Ervin. 8 These invasions of privacy apparently touch not only criminals but reputable people whose only offense is political, social, or ideological non-conform- [401 U.S. 996 , 1002] ity. As stated in Westin, Privacy & Freedom, pp. 365-366 (1967).
[ Footnote 1 ] Defense counsel gave as his reason 'For example, on cross eamination there was some question about a conversation, a phone conversation that the defendant had.'
[ Footnote 2 ] '[W]e are not going to make it a practice in our office to show the Court during each trial what eavesdropping devices we used, because on its face it might be illegal.' 'I don't think that we have to commit ourselves in any case and say, 'Judge, since it might be illegal, we did not use it,' so that we can make a record.'
[ Footnote 3 ] 'I represent only to your Honor in this case, and we will in other cases, that there was nothing illegal about any of the evidence we presented, no illegal eavesdropping devices were used, and I don't think that I have to tell defense counsel whether or not we used eavesdropping equipment.'
[ Footnote 4 ] '[T]hey have sort of a practice that the one who is honored to reveal these things has been left to the Solicitor General of the United States. I know of no district attorney that has made a disclosure yet. They either make it in the Supreme Court or they make it in the Seventh Circuit, but we haven't got down to the lower echelon yet where that has been disclosed even by the Solicitor General.'
[ Footnote 5 ] 'While the defendant takes the position that disclosure in open court is the constitutionally preferred procedure, he submits at the same time that an in camera determination of legality or illegality was required as an absolute constitutional minimum under the Fourth Amendment.' (App. brief in C.A., 62-63.)
[ Footnote 6 ] There is the initial question whether any intercepted communications relating to the offense of which petitioner was convicted are evidence of 'offenses other than those specified in the order of authorization or approval,' 2517(5). If so, 'Such contents and any evidence derived therefrom may be used [as testimony at trial] when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter.' This would seem to place upon the Government the burden of knowing the source of its evidence, even without challenge from a defendant.
[ Footnote 7 ] The number of reported interceptions of communications made pursuant to the Act indicates the problem is not small. In the last six months of 1968 there were 174 authorizations issued, all to State officers. 147 devices were installed. The average period of time authorized was 20 days. There were 128 extensions, averaging 20 days. Approximately 4,263 persons were involved in 66,738 intercepted communications. 126 intercepts were in dwellings and 45 were in business establishments.
In 1969, the pace did not perceptibly diminish.
Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications For the Period January 1, 1969 to December 31, 1969, Administrative Office of the United States Courts, April 30, 1970.
What number of interceptions are made in cases which involve the so- called 'national security' is not known.
Total Federal State Number of Applications 304 34 270 Authorizations issued 302 33 269 Average length of Authorization 26 days 16 days --- Extensions granted 194 11 183 Average length of Extension 22 days 14 days --- Total period authorized 9,019 days 462 days 8,557 days Number of Devices installed 271 30 241 Telephone wiretap 250 27 223 Both 6 2 4
Facility or place authorized in Application Residence 135 10 125 Apartment 68 7 61 Multiple dwelling 14 3 11 Business establishment 71 10 61 Business & Living quarters 5 2 3 Other 9 1 8 Average number of intercepts per authorized device 641 1,498 --- Average number of persons involved per wiretap 116 152 --- Total number of intercepts (approx.) 173,000 42,000 131,000 Total number of persons involved (approx.) 13,410 4,560 8,850
[ Footnote 8 ] See Hearings before Gallagher Subcommittee on H. Government Operations, 89th Cong., 2d Sess., July 26, 27, and 28, 1966; Address of Cong. Gallagher-Technology and Society: A Conflict of Interest?, 115 Cong. Rec., April 1, 1969; H.Rep.No.1842, 90th Cong., 2d Sess., Privacy and the National Data Bank on Administrative Practice & on Adminsitrative Practice & Procedure of S. Committee on the Judiciary, 89th Cong., 1st Sess., pursuant to S.Res.39, Pt. 2, April 13, 27, 28, 29; May 5, 6; and June 7, 1965.
The hearings conducted by Senator Ervin are not yet printed.