388 U.S. 41 (1967), 615, Berger v. New York

Docket Nº:No. 615
Citation:388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040
Party Name:Berger v. New York
Case Date:June 12, 1967
Court:United States Supreme Court

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388 U.S. 41 (1967)

87 S.Ct. 1873, 18 L.Ed.2d 1040



New York

No. 615

United States Supreme Court

June 12, 1967

Argued April 13, 1967



Petitioner was indicted and convicted of conspiracy to bribe the Chairman of the New York State Liquor Authority based upon evidence obtained by eavesdropping. An order pursuant to § 813-a of the N.Y.Code of Crim.Proc. permitting the installation of a recording device in an attorney's office for a period of 60 days was issued by a justice of the State Supreme Court, after he was advised of recorded interviews between a complainant and first an Authority employee and later the attorney in question. Section 813-a authorizes the issuance of an "ex parte order for eavesdropping" upon "oath or affirmation of [87 S.Ct. 1874] a district attorney, or of the attorney general or of an officer above the rank of sergeant of any police department." The oath must state

that there is reasonable ground to believe that evidence of a crime may be thus obtained, and particularly describing the person or persons whose communications . . . are to be overheard or recorded and the purpose thereof.

The order must specify the duration of the eavesdrop, which may not exceed two months, unless extended. On the basis of leads obtained from this eavesdrop, a second order, also for a 60-day period, permitting an installation elsewhere was issued. After two weeks of eavesdropping a conspiracy, in which petitioner was a "go-between," was uncovered. The New York courts sustained the statute against constitutional challenge.

Held: The language of § 813-a 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. Pp. 45-64.

(a) The Fourth Amendment's protections include "conversation," and the use of electronic devices to capture it was a "search" within the meaning of that Amendment. P. 51.

(b) New York's statute authorizes eavesdropping without requiring belief that any particular offense has been or is being committed, nor that the "property" sought, the conversations, be particularly described. Pp. 55-58.

(c) The officer is given a roving commission to "seize" any and all conversations, by virtue of the statute's failure to describe with particularity the conversations sought. P. 59.

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(d) Authorization to eavesdrop for a two-month period is equivalent to a series of searches and seizures pursuant to single showing of probable cause, and avoids prompt execution. P. 59.

(e) The statute permits extensions of the original two-month period on a mere showing that such extension is "in the public interest," without a present showing of probable cause for the continuation of the eavesdrop. P. 59.

(f) The statute places no termination date on the eavesdrop once the conversation sought is seized, but leaves it to the officer's discretion. Pp. 59-60.

(g) While there is no requirement for notice in view of the necessity for secrecy, the statute does not overcome this defect by demanding the showing of exigent circumstances. P. 60.

(h) The statute does not provide for a return on the warrant, thus leaving full discretion in the officer as to the use of the seized conversations of innocent as well as guilty parties. P. 60.

18 N.Y.2d 638, 219 N.E.2d 295, reversed.

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CLARK, J., lead opinion

MR. JUSTICE CLARK delivered the opinion of the Court.

This writ tests the validity of New York's permissive eavesdrop statute, N.Y.Code Crim.Proc. § 813-a,1 under the Fourth, Fifth, Ninth, and Fourteenth [87 S.Ct. 1876] Amendments. The claim is that the statute sets up a system of surveillance which involves trespassory intrusions into private, constitutionally protected premises, authorizes

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"general searches" for "mere evidence,"2 and is an invasion of the privilege against self-incrimination. The trial court upheld the statute, the Appellate Division affirmed without opinion, 25 App.Div.2d 718, 269 N.Y.S.2d 368, and the Court of Appeals did likewise by a divided vote. 18 N.Y.2d 638, 219 N.E.2d 295. We granted certiorari, 385 U.S. 967 (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.

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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 a recording 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 [87 S.Ct. 1877] prohibit the practice by statute. Statutes of California 1862, p. 288, CCLXII. During the Civil War, General J. E. B. Stuart

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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 newsgathering 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 1934.3 New York, in 1938, declared by constitutional amendment that "[t]he right of the people to be secure 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

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eavesdropping on anyone in almost 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" x 3/8" x 1/3") -- 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, eavesdropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control. A microphone...

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