Irvine v. People of State of California, No. 12

CourtUnited States Supreme Court
Writing for the CourtMr. Justice JACKSON announced the judgment of the Court and an opinion in which The CHIEF JUSTICE; CLARK; BLACK; FRANKFURTER; DOUGLAS; Murphy
Citation74 S.Ct. 381,98 L.Ed. 561,347 U.S. 128
Decision Date08 February 1954
Docket NumberNo. 12

347 U.S. 128
74 S.Ct. 381
98 L.Ed. 561



No. 12.
Argued Nov. 30, 1953.
Decided Feb. 8, 1954.
Rehearing Denied March 15, 1954.

See 347 U.S. 931, 74 S.Ct. 527.

Page 129

Mr. Morris Lavine, Los Angeles, Cal., for petitioner.

Miss Elizabeth Miller, Los Angeles, Cal., Mr. Clarence A. Linn, San Francisco, Cal., for respondent.

Mr. Justice JACKSON announced the judgment of the Court and an opinion in which The CHIEF JUSTICE, Mr. Justice REED and Mr. Justice MINTON join.

This case involves constitutional questions growing out of methods employed to convict petitioner on charges of horserace bookmaking and related offenses1 against the antigambling laws of California.2 Petitioner exhausted all avenues to relief under state procedures and then sought review here of duly raised federal issues.

We granted certiorari3 on a petition which tendered four questions. However, petitioner's counsel has now presented two additional questions, one concerning the application of an immunity statute of California and another attacking certain instructions given to the jury by the trial court. Neither of these was mentioned in the petition. We disapprove the practice of smuggling additional questions into a case after we grant certiorari. The issues here are fixed by the petition unless we limit the grant, as frequently we do to avoid settled, frivolous

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or state law questions. We do not take up the questions numbered 3 and 6 of petitioner's brief because they are improperly presented.

Upon his arrest, petitioner had on his person a federal wagering tax stamp bearing his name, home address and the date, November 5, 1951. Against objection, it and other documentary evidence from the office of the United States Collector of Internal Revenue was received to show petitioner's application for the wagering tax stamp and his return to the Collector under the federal law. These documents were made pursuant to the Federal Act imposing wagering taxes, 65 Stat. 529, 26 U.S.C. (Supp. V) § 3285 et seq., 26 U.S.C.A. § 3285 et seq., held constitutional by this Court in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. The claim is made that it was error as a matter of federal law to admit this evidence and also that payment of the federal tax resulted in a federal license to conduct the wagering business. This statute does not make such records or stamps confidential or privileged but, on the contrary, expressly requires the name and place of business of each such taxpayer to be made public. 53 Stat. 395, 26 U.S.C. § 3275, 26 U.S.C.A. § 3275. Petitioner's contentions are without substance or merit in view of the express provision of the statute that payment of the tax does not exempt any person from penalty or punishment by state law and does not authorize commencement or continuance of such business. 53 Stat. 395, 26 U.S.C. § 3276, 26 U.S.C.A. § 3276; 65 Stat. 531, 26 U.S.C. (Supp. V) § 3292, 26 U.S.C.A. § 3292.4.

But the questions raised by the officers' conduct while investigating this case are serious. The police strongly suspected petitioner of illegal bookmaking but were without proof of it. On December 1, 1951, while Irvine and his wife were absent from their home, an officer ar-

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ranged to have a locksmith go there and make a door key. Two days later, again in the absence of occupants, officers and a technician made entry into the home by the use of this key and installed a concealed microphone in the hall. A hole was bored in the roof of the house and wires were strung to transmit to a neighboring garage whatever sounds the microphone might pick up. Officers were posted in the garage to listen. On December 8, police again made surreptitious entry and moved the microphone, this time hiding it in the bedroom. Twenty days later they again entered and placed the microphone in a closed, where the device remained until its purpose of enabling the officers to overhear incriminating statements was accomplished.

We should note that this is not a conventional instance of 'wire tapping.' 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. We cannot sustain the contention that the conduct or reception of the evidence violated the Federal Communications Act. 48 Stat. 1103, 47 U.S.C. § 605, 47 U.S.C.A. § 605. Cf. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231.

At the trial, officers were allowed to testify to conversations heard through their listening installations. The snatches of conversation which the prosecution thought useful were received in evidence. They were in the lingo of the race track and need not be recited, but the jury might well have regarded them as incriminating. The testimony was received under objection, properly

Page 132

raising the question that it was constitutionally inadmissible since obtained by methods which violate the Fourteenth Amendment.

Each of these repeated entries of petitioner's home without a search warrant or other process was a trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished. Science has perfected amplifying and recording devices to become frightening instruments of surveillance and invasion of privacy, whether by the policeman, the blackmailer, or the busy-body. That officers of the law would break and enter a home, secrete such a device, even in a bedroom, and listen to the conversation of the occupants for over a month would be almost incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment as a restriction on the Federal Government that 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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.' The decision in Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, for the first time established that '(t)he security of one's privacy against arbitrary intrusion by the police' is embodied in the concept of due process found in the Fourteenth Amendment.

But Wolf, for reasons set forth therein, declined to make the subsidiary procedural and evidentiary doctrines developed by the federal courts limitations on the states. On the contrary, it declared, 'We, hold, therefore, that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.'

Page 133

338 U.S. 25, 33, 69 S.Ct. 1359, 1364. See Stefanelli v. Minard, 342 U.S. 117, 119, 122, 72 S.Ct. 118, 119—121, 96 L.Ed. 138. That holding would seem to control here.

An effort is made, however, to bring this case under the sway of Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. That case involved, among other things, an illegal search of the defendant's person. But it also presented an element totally lacking here—coercion (as the Court noted, 342 U.S. at page 173, 72 S.Ct. at page 210), applied by a physical assault upon his person to compel submission to the use of a stomach pump. This was the feature which led to a result in Rochin contrary to that in Wolf. Although Rochin raised the search-and-seizure question, this Court studiously avoided it and never once mentioned the Wolf case. Obviously, it thought that illegal search and seizure alone did not call for reversal. However obnoxious are the facts in the case before us, they do not involve coercion, violence or brutality to the person, but rather a trespass to property, plus eavesdropping.

It is suggested, however, that although we affirmed the conviction in Wolf, we should reverse here because this invasion of privacy is more shocking, more offensive, than the one involved there. The opinions in Wolf were written entirely in the abstract and did not disclose the details of the constitutional violation. Actually, the search was offensive to the law in the same respect, if not the same degree, as here. A deputy sheriff and others went to a doctor's office without a warrant and seized his appointment book, searched through it to learn the names of all his patients, looked up and interrogated certain of them, and filed an information against the doctor on the information that the District Attorney had obtained from the books. The books also were introduced in evidence against the doctor at his trial.

We are urged to make inroads upon Wolf by holding that it applies only to searches and seizures which pro-

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duce on our minds a mild shock, while if the shock is more serious, the states must exclude the evidence or we will reverse the conviction. We think that the Wolf decision should not be overruled, for the reasons so persuasively stated therein. We think, too, that a distinction of the kind urged would leave the rule so indefinite that no state court could know what it should rule in order to keep its processes on solid constitutional ground.

Even as to the substantive rule governing federal searches in violation of the Fourth Amendment, both the Court and individual Justices...

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