United States v. Silverman, Crim. No. 730-58.

• Decision Date: 24 October 1958
• Docket Number: Crim. No. 730-58.
• Citation: 166 F. Supp. 838
• Parties: UNITED STATES of America, Plaintiff, v. Julius SILVERMAN, Robert L. Martin, and Meyer Schwartz, Defendants.
• Court: U.S. District Court — District of Columbia

166 F. Supp. 838

UNITED STATES of America, Plaintiff, v. Julius SILVERMAN, Robert L. Martin, and Meyer Schwartz, Defendants.

Crim. No. 730-58.

United States District Court District of Columbia.

October 24, 1958.

Oliver Gasch, U. S. Atty., and Thomas A. Flannery, Asst. U. S. Atty., Washington, D. C., for plaintiff.

Edward Bennett Williams and Myron G. Ehrlich, Washington, D. C., for defendants.

HOLTZOFF, District Judge.

The defendants are under indictment for violations of the gambling statutes of the District of Columbia. The matter is before the Court at this time on the defendants' motion to suppress certain evidence obtained by police officers as a result of a search and seizure in connection with this case. This search and seizure was admittedly made pursuant to a search warrant.

The basis of the motion is two-fold: first, that the affidavit on the basis of which the search warrant was issued, was insufficient, in that the information set forth therein was obtained in violation of the Constitution and the Laws of the United States; second, that the search warrant was unlawfully executed.

Taking up these two grounds separately, the manner in which the facts set forth in the affidavit which led to the issuance of the search warrant, were secured is not in dispute. By permission of the owner police officers obtained entrance to a portion of the premises which adjoined the searched premises and attached an electronic device to the inside wall of the adjoining premises with a wire projecting about six or eight inches into the party wall between the two houses. By means of this electronic device, the officers were able to overhear conversations that went on in the suspected premises. These conversations were made the basis of the affidavit in question. It is urged that the action of the police officers was violative of the Fourth Amendment, as well as of the statute relating to interception of communications. Each of these two grounds will be separately considered.

The provisions of the Fourth Amendment relating to search and seizure are limited to physical searches and seizures of objects. This has been continuously held by the Supreme Court. Thus, in Olmstead v. United States, 277 U.S. 438, 464, 48 S.Ct. 564, 72 L.Ed. 944, the Court laid down the general proposition that, if evidence is obtained by the use of sense of hearing and that only, and there is no entry into the house or office of the defendant, there is no unlawful search and seizure. The Olmstead case applied this principle to what is known as wire tapping, that is, physically connecting a telephone instrument with wires, over which telephone messages are carried. It was held that such an activity is not a violation of the Fourth Amendment. The Olmstead case is law today.

It was followed in the case of Goldman v. United States, 316 U.S. 129, 135, 62 S.Ct. 993, 86 L.Ed. 1322, where the general principle was applied to a situation in which, as in this case, an electronic instrument was attached to a wall in adjacent premises and by this means conversations going on within the suspected premises were overheard. It was held that this did not constitute a violation of the Fourth Amendment. The Olmstead case was cited with approval in On Lee v. United States, 343 U.S. 747, 751, 72 S.Ct. 967, 96 L.Ed. 1270.

In determining what principles of law have been enunciated in judicial opinions, it is, of course, well settled that consideration must not be given to everything that was said, but only to what was actually held. The ruling of a Court must be determined by reference to the factual situation. Everything else is dicta and not binding. This was emphatically indicated by Chief Justice Marshall many years ago in the case of Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257. It would not do, as counsel suggests, for the Court to speculate on what at some future time the Supreme Court might decide in the light of changes of personnel, and in the light of various remarks of individual members of the Court in different cases. This exercise might be interesting for the author of an article in a legal periodical, but it would be inappropriate for a Court in deciding actual controversies. Such speculation might perhaps lead to a chaotic situation, since different judges might reach different results by this means. This Court is bound to follow the rules of law as formulated by the Supreme Court, as they now stand.

The rules of law governing the interpretation of the provisions of the Fourth Amendment relating to search and seizure are derived from the philosophy and the history of...