365 U.S. 458 (1961), 111, Pugach v. Dollinger

Docket Nº:No. 111
Citation:365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678
Party Name:Pugach v. Dollinger
Case Date:February 27, 1961
Court:United States Supreme Court

Page 458

365 U.S. 458 (1961)

81 S.Ct. 650, 5 L.Ed.2d 678




No. 111

United States Supreme Court

February 27, 1961

Argued January 16, 1961




A federal court may not enjoin the use in a criminal trial in a state court of evidence obtained by wiretapping in violation of § 605 of the Federal Communications Act. Schwartz v. Texas, 344 U.S. 199; Stefanelli v. Minard, 342 U.S. 117.

277 F.2d 739 affirmed.

Per curiam opinion.


The judgment is affirmed on the authority of Schwartz v. Texas, 344 U.S. 199, and Stefanelli v. Minard, 342 U.S. 117.

MR. JUSTICE BRENNAN would also affirm, but solely on the authority of Stefanelli v. Minard, 342 U.S. 117.

Page 459

DOUGLAS, J., dissenting

MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.

In Schwartz v. Texas, 344 U.S. 199, a pawnbroker was convicted as an accomplice in a robbery. Records of his telephone conversations, gotten by police eavesdropping, were admitted in evidence against him during his trial in the state court. He claimed that such evidence was inadmissible under 47 U.S.C. § 605.1 This Court rejected that claim without even stopping to see if indeed there had been a violation of the federal statute. The rationale of that rejection was that,

Where a state has carefully legislated so as not to render inadmissible evidence obtained and sought to be divulged in violation of the laws of the United States, this Court will not extend by implication the statute of the United States so as to invalidate the specific language of the state statute.

Id., 202.

The later decision of this Court in Benanti v. United States, 355 U.S. 96, swept away that rationale, and Schwartz v. Texas, supra, today stands alone as an aberration from the otherwise vigorous enforcement this Court has given to the congressional policy embodied in 47 U.S.C. § 605. For, in Benanti, in setting aside a federal conviction, we held that the proscription of wiretapping contained in § 605 forbade wiretapping by an authorized executive officer of the State, acting under the explicit terms of a state statute and pursuant to a warrant issued

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by the state judiciary.

[K]eeping in mind [the] comprehensive scheme of interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy.

Id., 105-106. It seems incongruous to me that this sweeping congressional purpose [81 S.Ct. 651] should now be held to make a detour around the precincts of a state court. This is especially true where, as here, officials have shown such an avid taste for violating the law. See Dash, Schwartz and Knowlton, The Eavesdroppers, pp. 68-69. In such circumstances, redress -- other than by an exclusionary rule -- against the criminal acts of those who bear the badge of the law is neither easy nor generous. Cf. Wolf v. Colorado, 338 U.S. 25, 41, 42-44 (dissenting opinion).

Yet today a majority of this Court summarily holds that Schwartz v. Texas, supra, is still the law, and petitioner is left only with the consoling knowledge that Congress meant to protect the privacy of his telephone conversations,2 while the benefits of the congressional intendment are denied him.

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Petitioner is charged, in a New York state court, with the commission of several serious crimes. His complaint in the instant proceeding alleged that, "on or about June 15th, 1959, and thereafter," agents of the District Attorney and of the New York police force tapped his telephone wires pursuant to a state court warrant and "obtained certain information." That information, and other evidence to which it led, was divulged to the grand jury, which indicted petitioner, and to the press. But, more importantly, there was the allegation that the

defendants intend to use the evidence obtained by use of the aforesaid illegal wiretaps and the information obtained through the illegal use of the aforesaid wiretaps upon the trial

which petitioner imminently faces. The prayer asked that the defendants be enjoined

from proceeding . . . upon the indictments . . . on any grounds in which they may use wiretapping evidence, or on any grounds or investigations resulting from or instituted as a result of the aforesaid illegal wiretaps.

There is no doubt that, once the wiretap evidence is put in during the impending trial, petitioner is without remedy for the prejudice it does him in that trial, either in the state courts, People v. Variano, 5 N.Y.2d 391, 185 N.Y.S.2d 1, 157 N.E.2d 857, or, under Schwartz v. Texas, supra, in the federal courts.

In Stefanelli v. Minard, 342 U.S. 117, the petitioner was charged with a violation of the state gambling laws. He sought to enjoin the use at his trial of evidence obtained by a police invasion of his home, an invasion admittedly in violation of the command of the Fourth Amendment. Relief was denied in the exercise of equitable discretion, three factors being relied on. First, the petitioner, it was said, could show no irreparable injury, for, at worst, he would go to jail on the evidence sought to be suppressed. Second, it was supposed that

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the federal court was being asked "to intervene piecemeal to try collateral issues." at 123. Third, and overriding...

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