365 U.S. 505 (1961), 66, Silverman v. United States

Docket Nº:No. 66
Citation:365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734
Party Name:Silverman v. United States
Case Date:March 06, 1961
Court:United States Supreme Court
 
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Page 505

365 U.S. 505 (1961)

81 S.Ct. 679, 5 L.Ed.2d 734

Silverman

v.

United States

No. 66

United States Supreme Court

March 6, 1961

Argued December 5, 1960

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

At the trial in a federal district court in which petitioners were convicted of gambling offenses under the District of Columbia Code, there was admitted in evidence over their objection testimony of police officers describing incriminating conversations engaged in by petitioners at their alleged gambling establishment, which the officers had overheard by means of an electronic listening device pushed through the party wall of an adjoining house until it touched heating ducts in the house occupied by petitioners. Held: Such testimony should not have been admitted in evidence, and the convictions must be set aside. Pp. 506-512.

(a) Although much of what the officers heard and testified about consisted of petitioners' share of telephone conversations, it cannot be said that the officers intercepted those conversations and divulged their contents in violation of § 605 of the Communications Act of 1934. Pp. 507-508.

(b) On the record in this case, the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by petitioners, which violated their rights under the Fourth Amendment. Goldman v. United States, 316 U.S. 129, and On Lee v. United States, 343 U.S. 747, distinguished. Pp. 509-512.

107 U.S.App.D.C. 144, 275 F.2d 173, reversed.

Page 506

STEWART, J., lead opinion

[81 S.Ct. 680] MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioners were tried and found guilty in the District Court for the District of Columbia upon three counts of an indictment charging gambling offenses under the District of Columbia Code. At the trial, police officers were permitted to describe incriminating conversations engaged in by the petitioners at their alleged gambling establishment, conversations which the officers had overheard by means of an electronic listening device. The convictions were affirmed by the Court of Appeals, 107 U.S.App.D.C. 144, 275 F.2d 173, and we granted certiorari to consider the contention that the officers' testimony as to what they had heard through the electronic instrument should not have been admitted into evidence. 363 U.S. 801.

The record shows that in the spring of 1958 the District of Columbia police had reason to suspect that the premises at 408 21st Street, N.W., in Washington, were being used as the headquarters of a gambling operation. They gained permission from the owner of the vacant adjoining row house to use it as an observation post. From this vantage point, for a period of at least three consecutive days in April, 1958, the officers employed a so-called "spike mike" to listen to what was going on within the four walls of the house next door.

The instrument in question was a microphone with a spike about a foot long attached to, it together with an amplifier, a power pack, and earphones. The officers inserted the spike under a baseboard in a second-floor room of the vacant house and into a crevice extending several inches into the party wall, until the spike hit something solid "that acted as a very good sounding board." The record clearly indicates that the spike made contact with a heating duct serving the house occupied

Page 507

by the petitioners, thus converting their entire heating system into a conductor of sound. Conversations taking place on both floors of the house were audible to the officers through the earphones, and their testimony regarding these conversations, admitted at the trial over timely objection, played a substantial part in the petitioners' convictions.1

Affirming the convictions, the Court of Appeals held that the trial court had not erred in admitting the officers' testimony. The court was of the view that the officers' use of the spike mike had violated neither the Communications Act of 1934, 47 U.S.C. § 605, cf. Nardone v. United States, 302 U.S. 379, nor the petitioners' rights under the Fourth Amendment, cf. Weeks v. United States, 232 U.S. 383.

In reaching these conclusions, the court relied primarily upon our decisions in Goldman v. United States, 316 U.S. 129, and On Lee v. United States, 343 U.S. 747. Judge Washington dissented, believing that, even if the petitioners' Fourth Amendment rights had not been abridged, the officers' conduct had transgressed the standards of due process guaranteed by the Fifth Amendment. Cf. Irvine v. California, 347 U.S. 128.

[81 S.Ct. 681] As to the inapplicability of § 605 of the Communications Act of 1934, we agree with the Court of Appeals. That section provides that

. . . no person not being

Page 508

authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. . . .

While it is true that much of what the officers heard consisted of the petitioners' share of telephone conversations, we cannot say that the officers intercepted these conversations within the meaning of the statute.

Similar contentions have been rejected here at least twice before. In Irvine v. California, 347 U.S. 128, 131, the Court said:

Here the apparatus of the officers was not in any way connected with the telephone facilities, there was no interference with the communications system, there was no interception of any message. All that was heard through the microphone was what an eavesdropper, hidden in the hall, the bedroom, or the closet, might have heard. We do not suppose it is illegal to testify to what another person is heard to say merely because he is saying it into a telephone.

In Goldman v. United States, 316 U.S. 129, 134, it was said that

[t]he listening in the next room to the words of [the petitioner] as he talked into the telephone receiver was no more the interception of a wire communication, within the meaning of the Act, than would have been the overhearing of the conversation by one sitting in the same room.

In presenting here the petitioners' Fourth Amendment claim, counsel has painted with a broad brush. We are asked to reconsider our decisions in Goldman v. United States, supra, and On Lee v. United States, supra. We are told that reexamination of the rationale of those cases, and of Olmstead v. United States, 277 U.S. 438, from which they stemmed, is now essential in the light of recent and projected developments in the science of electronics. We are favoured with a description of "a device known as the parabolic microphone which can pick up a conversation three hundred yards away." We are told of a

Page 509

"still experimental technique whereby a room is flooded with a certain type of sonic wave," which, when perfected, "will make it possible to overhear everything said in a room without ever entering it or even going near it." We are informed of an instrument "which can pick up a conversation through an open office window on the opposite side of a busy street."2

The facts of the present case, however, do not require us to consider the large questions which have been argued. We need not here contemplate the Fourth Amendment...

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