Berger v. State of New York

Citation87 S.Ct. 1873,18 L.Ed.2d 1040,388 U.S. 41
Decision Date12 June 1967
Docket NumberNo. 615,615
PartiesRalph BERGER, Petitioner, v. STATE OF NEW YORK
CourtUnited States Supreme Court

Joseph E. Brill, New York City, for petitioner.

H. Richard Uviller, New York City, for respondent.

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 Amendments. The claim is that the statute sets up a system of surveillance which involves trespassory intrusions into private, constitutionally protected premises, authorizes

'generalse arches' 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 A.D.2d 718, 269 N.Y.S.2d 368, and the Court of Appeals did likewise by a divided vote. 18 N.Y.2d 638, 272 N.Y.S.2d 782, 219 N.E.2d 295. We granted certiorari, 385 U.S. 967, 87 S.Ct. 505, 17 L.Ed.2d 432 (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.

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 r ecording 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 prohibit the practice by statute. Statutes of California 1862, p. 288, CCLX II. During the Civil War General J. E. B. Stuart

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 news gathering 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 secured 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

eavesdropping on anyone in most 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 3/8 1/8 )—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 eaes dropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control. A microphone concealed in a book, a lamp, or other unsuspected place in a room, or made into a fountain pen, tie clasp, lapel button, or cuff link increases the range of these powerful wireless transmitters to a half mile. Receivers pick up the transmission with interference-free reception on a special wave frequency. And, of late, a combination mirror transmitter has been developed which permits not only sight but voice transmission up to 300 feet. Likewise, parabolic microphones, which can overhear conversations without being placed within the premises monitored, have been developed. See Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's, 66 Col.L.Rev. 1003, 1005-1010.

As science developed these detection techniques, law makers, sensing the resulting invasion of individual privacy, have provided some statutory protection for the public. Seven states, California, Illinois, Maryland, Massachusetts, Nevada, New York, and Oregon, prohibit surreptitious eavesdropping by mechanical or electronic device.4 However, all save Illinois permit official court-

ordered eavesdropping. Some 36 states prohibit wiretapping.5 But of these, 27 permit 'authorized' interception of some type. Federal law, as we have seen, prohibits interception and divulging or publishing of the content of wiretaps without exception.6 In sum, it is fair to say that wiretapping on the whole is outlawed, except for permissive use by law enforcement officials in

some states; while electronic eaesdropping is—save for seven states—permitted both officially and privately. And, in six of the seven states, electronic eavesdropping ('bugging') is permissible on court order.


The law, though jealous of individual privacy, has not kept pace with these advances in scientific knowledge. This is not to say that individual privacy has been relegated to a second-class position for it has been held since Lord Camden's day that intrusions into it are "subversive of all the comforts of society." Entick v. Carrington, 19 How.St.Tr. 1029, 1066 (1765). And the Founders so decided a quarter of a century later when they declared in the Fourth Amendment that the people had a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." Indeed, that right, they wrote, "shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Almost a century thereafter this Court took specific and lengthy notice of Entick v. Carrington, supra, finding that its holding was undoubtedly familiar in the minds of those who framed the fourth amendment * * *. Boyd v. United States, 116 U.S. 616, 626-627, 6 S.Ct. 524, 530, 29 L.Ed. 746 (1886). And after quoting from Lord Camden's opinion at some length, Mr. Justice Bradley characterized it thus:

"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the...

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