PAGE Kaplan, Search and Seizure: A No-Man's Land in King, Electronic Surveillance and Constitutional LANDYNSKI, SEARCH AND SEIZURES AND THE SUPREME LASSON, THE HISTORY AND DEVELOPMENT FOURTH AMENDMENT TO THE UNITED STATES CON- Note, Limitation on Seizure of Evidentiary Objects: Note, Wiretapping and the Congress, 52 MICH. L. REV. 430 (1954) 1 Hale Pleas of the Crown 419 Report by the President's Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society (1967) 39 34 31, 40 40 39 31, 33 43 70, 71, 72, 73, 82 Rosenzweig, The Law of Wiretapping, 33 CORNELL L. Q. 73 (1947) Semerjian, Proposals on Wiretapping in Light of Re- Westin, Science, Privacy and Freedom, 66 Colum. L. 31 34 35 33, 50 The Court of Appeals of the State of New York affirmed the judgment without opinion, Chief Judge DESMOND and Judge FULD dissenting in an opinion reported at 18 N.Y.2d 638, 640 (1966). The Appellate Division of the Supreme Court of the State of New York, First Department, unanimously affirmed the judgment without opinion at 25 App. Div. 2d 718 (1966). 2 Questions Presented In granting certiorari, the Court certified petitioner's phrasing of the questions as follows: 1. Assuming the basic Federal constitutionality of New York State's permissive eavesdrop legislation which allows electronic room eavesdropping or "bugging" by ex parte Court order (N. Y. Code Crim. Proc. $813-a), were the ex parte Court orders for the room eavesdrops in this particular case, without which this prosecution stipulatedly could not have been instituted or maintained, nevertheless invalid under the Fourth Amendment because not based upon an adequate showing of probable cause? 2. Is the New York ex parte permissive eavesdrop legislation (N. Y. Code Crim. Proc. §813-a) unconstitutional under the Federal Fourth, Fifth, Ninth and Fourteenth Amendments as setting up a system which intrinsically involves trespassory intrusion into private premises, "general" searches for "mere evidence" and invasion of the privilege against self-incrimination; and were the particular room eavesdrops here involved unconstitutional on those grounds? Constitutional and Statutory Provisions Involved United States Constitution, Amendment IV 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 3 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. New York Constitution, Article I, §12 The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable grounds to believe that evidence of crime may be thus obtained, and identifying the particular means of communication and particularly describing the person or persons whose communications are to be intercepted and the purposes thereof. New York Code of Criminal Procedure, §813-a An ex parte order for eavesdropping as defined in subdivisions one and two of section seven hundred thirty-eight of the penal law may be issued by any justice of the supreme court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and, in the case of a telegraphic or telephonic communication, identifying the particular telephone number or telegraph line involved. In connection with the 4 issuance of such an order the justice or judge may examine on oath the applicant and any other witness he may produce and shall satisfy himself of the existence of reasonable grounds for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed by the justice or judge who signed and issued the original order upon satisfying himself that such extension or renewal is in the public interest. Any such order together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein. A true copy of such order shall at all times be retained in his possession by the judge or justice issuing the same, and, in the event of the denial of an application for such an order, a true copy of the papers upon which the application was based shall in like manner be retained by the judge or justice denying the same. Statement The defendant, a Chicago public relations man, was convicted, after a four-week trial (SCHWEITZER, J. and a jury) of two counts of CONSPIRACY TO BRIBE A PUBLIC OFFICIAL (New York Penal Law §§580, 378). On December 17, 1964 he was sentenced to one year in the Penitentiary on each count, the sentences to run concurrently. The evidence established that Ralph Berger was a party to two separate agreements, each with the same object: the delivery of sums of money to a corrupt public official in return for which valuable liquor licenses would |