United States v. Plisco, 59982.

• Decision Date: 11 February 1938
• Docket Number: No. 59982.,59982.
• Citation: 22 F. Supp. 242
• Parties: UNITED STATES v. PLISCO et al.
• Court: U.S. District Court — District of Columbia

22 F. Supp. 242

UNITED STATES v. PLISCO et al.

No. 59982.

District Court of the United States for the District of Columbia.

February 11, 1938.

David A. Pine, Acting U. S. Atty., and Roger Robb and John W. Fihelly, Asst. U. S. Attys., all of Washington, D. C.

James A. O'Shea, William A. Gallagher, Harry T. Whelan, William B. O'Connell, Irvin Goldstein, and William H. McGrath, all of Washington, D. C., for defendants.

COX, Justice.

The indictment charges a conspiracy of thirty-two defendants to violate the law relating to gambling in the District of Columbia. D.C.Code, § 863 as amended, and § 865, D.C.Code 1929, T. 6, §§ 151, 153.

Motions have been filed by four of the defendants, Plisco, Morganstein, Cahill, and Floratos, to quash certain search warrants and to suppress the evidence seized thereunder upon the ground, among others, that material evidence upon which these warrants were issued appears to have been obtained by police officers by means of tapping wires and intercepting messages passing within the District of Columbia to or from the defendants.

It is conceded by counsel for the United States that without the evidence as to the intercepted messages the remaining evidence is not sufficient to sustain the search warrants or the indictment.

Defendants rely upon Nardone v. United States, 58 S.Ct. 275, 82 L.Ed. ___, decided December 20, 1937, by the Supreme Court of the United States. In that case the question stated for decision and answered in the negative is, "whether, in view of the provisions of section 605 of the Communications Act of 1934, Ch. 652, 48 Stat. 1064, 1103; U.S.C. Tit. 47, § 605 (47 U.S.C.A. § 605), evidence procured by a federal officer's tapping telephone wires and intercepting messages is admissible in a criminal trial in a United States District Court."

Clearly, the terms of the question as thus stated are broad enough to include the question now presented. The facts of the two cases differ, however, in that the intercepted messages involved in the Nardone Case were interstate messages, while here we have to deal with local messages only. Counsel for the government argue that this difference distinguishes the present case because, as they contend, the Communications Act, as amended, 47 U.S. C.A. § 151 et seq., is concerned with interstate and not with local or intrastate communications; and that in view of the rule recognized and applied in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376, followed in Beard v. United States, 65 App.D.C. 231, 235, 82 F.2d 837, and Smith v. United States, 67 App.D.C. 251, 91 F.2d 556, 557, the language of the Nardone decision ought to be confined to interstate messages only and the rule recognized in the Olmstead Case left in force and effect as to local messages.

In the Olmstead Case it was held that the Fourth and Fifth Amendments to the Constitution do not protect a citizen against interception of his telephone messages by wire tapping or their use in evidence against him. The court there approved the common-law rule that admissibility of evidence is not affected by the illegality of the means by which it is obtained, subject to the established exception that excludes all evidence in the procuring of which government officials have invaded the right of privacy protected by the Fourth and Fifth Amendments. The court expressly recognized the authority of Congress to protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal cases, but declined to extend the established exception to the common-law rule to cover intercepted telephone messages "without the sanction of congressional enactment." The acts of the officers and the approval and adoption thereof by the government, challenged as immoral and wrongful in the minority opinions, were excused or justified as means to the end of detecting and convicting criminals.

The Communications Act, passed since the Olmstead decision, expressly provides in section 605, 47 U.S.C.A. § 605, that "no person not being 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."

On its face the Nardone decision, passing over the constitutional question considered in the Olmstead Case, accepts the broad language of this provision as direction to exclude evidence obtained through interception of telephone messages by wire tapping, in effect approving the further exception to the common-law rule which the court in the Olmstead Case refused to recognize without legislative...