394 U.S. 165 (1968), 133, Alderman v. United States

Docket Nº:No. 133, Oct. Term, 1967
Citation:394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176
Party Name:Alderman v. United States
Case Date:March 10, 1969
Court:United States Supreme Court

Page 165

394 U.S. 165 (1968)

89 S.Ct. 961, 22 L.Ed.2d 176



United States

No. 133, Oct. Term, 1967

United States Supreme Court

March 10, 1969

Certiorari denied October 9, 1967

Rehearing and certiorari granted

Motion to modify argued May 2, 1968

Reargued October 14, 1968

Order of January 29, 1968, withdrawn, rehearing and

certiorari granted, and case decided March 10, 1969. *




After petitioners in No. 133, O.T., 1967, were convicted of conspiring to transmit murderous threats in interstate commerce, they discovered that one petitioner's place of business had been subject to electronic surveillance by the Government. This Court refused to accept the Government's ex parte determination that "no overheard conversation in which any of the petitioners participated is arguably relevant to this prosecution," and vacated and remanded the case for further proceedings (390 U.S. 136). The Government moved to modify the order, urging that surveillance records should be subjected to in camera inspection by the trial judge, who would then turn over to petitioners only those materials arguably relevant to their prosecution. In Nos. 11 and 197, petitioners, who were convicted of national security violations, raised similar questions relating to the use of eavesdropped information.


1. Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, and not those who are aggrieved solely by the introduction of damaging evidence. Thus, codefendants and coconspirators have no special standing, and cannot prevent the admission against them of information which has been obtained through electronic surveillance which is illegal against another. Pp. 171-176.

2. A petitioner would be entitled to the suppression of evidence violative of the Fourth Amendment where the Government unlawfully overheard conversations of the petitioner himself, or where the

Page 166

conversations occurred on his premises, whether or not he was present or participated therein. Silverman v. United States, 365 U.S. 505, 511-512. Pp. 176-180.

3. If the surveillance is found to have been unlawful, and if a petitioner is found to have standing, the Government must disclose to him the records of those overheard conversations which the Government was not entitled to use in building its case against him. Pp. 180-185.

(a) The task of determining those items which might have made a substantial contribution to the preparation of the Government's case is too complex, and the margin for error too great, to rely solely upon the in camera examination by the trial court. Pp. 181-182.

(b) The trial court should, where appropriate, place defendants and their counsel under enforceable orders against unwarranted disclosure of the materials they are entitled to inspect. P. 185.

(c) Defendants will not have an unlimited license to rummage in the Government's files, as they may need or be entitled to nothing beyond the specified records of overheard conversations and the right to cross-examine the appropriate officials regarding the connection between those records and the prosecution's case. P. 185.

No. 133, O.T., 1967, order of January 29, 1968, withdrawn, order denying certiorari set aside, rehearing and certiorari granted, 371 F.2d 983, judgments vacated and remanded; Nos. 11 and 197, 34 F.2d 554, judgments vacated and remanded.

Page 167

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

After the convictions of petitioners had been affirmed, and while their cases were pending here, it was revealed that the United States had engaged in electronic surveillance which might have violated their Fourth Amendment rights and tainted their convictions. A remand to the District Court being necessary in each case for adjudication in the first instance, the questions now before us relate to the standards and procedures to be followed by the District Court in determining whether any of the Government's evidence supporting these convictions was the product of illegal surveillance to which any of the petitioners are entitled to object.

No. 133, O.T., 1967. Petitioners Alderman and Alderisio, along with Ruby Kolod, now deceased, were convicted of conspiring to transmit murderous threats in interstate commerce, 18 U.S.C. §§ 371, 875(c). Their convictions were affirmed on appeal, 371 F.2d 983 (C.A. 10th Cir.1967), and this Court denied certiorari, 389 U.S. 834 (1967). In their petition for rehearing, petitioners alleged they had recently discovered that Alderisio's place of business in Chicago had been the subject of electronic surveillance by the Government. Reading the response of the Government to admit that Alderisio's conversations had been overheard by unlawful

Page 168

electronic eavesdropping,1 we granted the petition for rehearing over the objection of the United States that "no overheard conversation in which any of the petitioners participated is arguably relevant to this prosecution." In our per curiam opinion, 390 U.S. 136 (1968), we refused to accept the ex parte determination of relevance by the Department of Justice in lieu of adversary [89 S.Ct. 964] proceedings in the District Court, vacated the judgment of the Court of Appeals, and remanded the case to the District Court for further proceedings.

The United States subsequently filed a motion to modify that order. Although accepting the Court's order insofar as it required judicial determination of whether any of the prosecution's evidence was the product of illegal surveillance, the United States urged that, in order to protect innocent third parties participating or referred to in irrelevant conversations overheard by the Government, surveillance records should first be subjected to in camera inspection by the trial judge, who would then turn over to the petitioners and their counsel only those materials arguably relevant to their prosecution. Petitioners opposed the motion, and the matter was argued before the Court last Term. We then set the case down for reargument at the opening of the current Term, 392 U.S. 919 (1968), the attention of the parties being directed to the disclosure issue and the question of

Page 169

standing to object to the Government's use of the fruits of illegal surveillance.2

Nos. 11 and 197. Both petitioners were convicted of conspiring to transmit to the Soviet Union information relating to the national defense of the United States, 18 U.S.C. §§ 794(a), (c), and of conspiring to violate 18 U.S.C. § 951 by causing Butenko to act as an agent of the Soviet Union without prior notification to the Secretary of State. Butenko was also convicted of a substantive offense under 18 U.S.C. § 951. The Court of Appeals affirmed all but Ivanov's conviction on the second conspiracy count. 384 F.2d 554 (C.A.3d Cir.1967). Petitions for certiorari were then filed in this Court, as was a subsequent motion to amend the

Page 170

Ivanov petition to raise an issue similar to that which was presented in No. 133, O.T. 1967.3 Following the [89 S.Ct. 965] first argument in Alderman (sub nom. Kolod v. United States), the petitions for certiorari of both Ivanov and Butenko were granted, limited to questions nearly identical to those involved in the reargument of the Alderman case.4 Page 171


The exclusionary rule fashioned in Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961), excludes from a criminal trial any evidence seized from the defendant in violation of his Fourth Amendment rights. Fruits of such evidence are excluded as well. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-392 (1920). Because the Amendment now affords protection against the uninvited ear, oral statements, if illegally overheard, and their fruits are also subject to suppression. Silverman v. United States, 365 U.S. 505 (1961); Katz v. United States, 389 U.S. 347 (1967)

In Mapp and Weeks, the defendant against whom the evidence was held to be inadmissible was the victim of the search. However, in the cases before us, each petitioner demands retrial if any of the evidence used to convict him was the product of unauthorized surveillance, regardless of whose Fourth Amendment rights the surveillance violated. At the very least, it is urged that, if evidence is inadmissible against one defendant or conspirator because tainted by electronic surveillance illegal as to him, it is also inadmissible against his codefendant or coconspirator.

This expansive reading of the Fourth Amendment and of the exclusionary rule fashioned to enforce it is admittedly inconsistent with prior cases, and we reject it. The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated

Page 172

by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.

Thus, in Goldstein v. United States, 316 U.S. 114 (1942), testimony induced by disclosing to witnesses their own telephonic communications intercepted by the Government contrary to 47 U.S.C. § 605 was held admissible against their coconspirators. The Court equated the rule under § 605 with the exclusionary rule under [89 S.Ct. 966] the Fourth Amendment.5 Wong Sun v. United States, 371 U.S. 471 (1963), came to like conclusions. There, two defendants were tried together; narcotics seized from a third party were held inadmissible against one defendant because they were the product of statements made by him at the time of his unlawful arrest. But the same narcotics were found to be admissible against the codefendant because

[t]he seizure of this

Page 173


To continue reading