-81

all, the search warrant analogy is useless because eavesdropping ipso facto effects a "general search" of all conversation during the eavesdropping, whereas search warrants must specify exactly what is to be "searched" and "seized". The Fifth and Ninth Amendment considerations fortify the case against any such Federal constitutional validation of trespassory electronic spying; the right of privacy and the privilege against self-incrimination deserve a better fate than would be portended if this case is affirmed.

The peculiar constitutional odiousness of the room eavesdropping activity in this case cries out for correction by this Court. If ever there is going to be a case in which permissive room eavesdrop procedures comparable to those in § 813-a may be sustained as constitutional by this Court, it should not be a case in which such a statute has been held by the State Courts to permit the procedural slackness, the conclusoriness of affidavit averments, the failure even to cite much less to substantiate the reliability of any sources of alleged information, the "bootstrap" use of a whole evolving series of eavesdrops generating one another, the dragnet character of the "search", and the profoundly unsatisfactory probative quality of the "recordings". The Fourth, Fifth, Ninth and Fourteenth Amendments should not be thus lightly overborne.

82

CONCLUSION

It is respectfully submitted that the judgment of the Court below should be reversed and the prosecution against petitioner Berger be ordered to be dismissed.

Respectfully submitted,

JOSEPH E. BRILL

Attorney for Petitioner
Ralph Berger

ABRAHAM GLASSER
On the Brief

[APPENDIX FOLLOWS]

A1

APPENDIX

1. N.Y. Code Crim. Proc. §§813-c to 813-e (procedure for motion to suppres).

$813-c. The motion in general

A person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the property, papers or things, hereinafter referred to as property, claimed to have been unlawfully obtained may be used as evidence against him in a criminal proceeding, may move for the return of such property or for the suppression of its use as evidence. The court shall hear evidence upon any issue of fact necessary to determination of the motion.

If the motion is granted, the property shall be restored unless otherwise subject to lawful detention, and in any event it shall not be admissible in evidence in any criminal proceeding against the moving party.

If the motion is denied, the order denying such may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Added L. 1962, c. 954, §1, eff. April 29, 1962.

$813-d. Time of making and determination

1. The motion shall be made with reasonable diligence prior to the commencement of any trial in which the property claimed to have been unlawfully obtained is proposed to be offered as evidence, except that the court shall entertain a motion made for the first time during trial upon a showing that (1) the defendant was unaware of the seizure

A-2

Appendix

of the property until after the commencement of the trial, or (2) the defendant, though aware of the seizure prior to trial, has, only after the commencement of the trial, obtained material evidence indicating unlawful acquisition, or (3) the defendant has not had adequate time or opportunity to make the motion before trial.

2. If a motion has been made and denied before trial, the determination shall be binding upon the trial court, except that, if it is established that, after the making of such motion, the defendant obtained additional, material evidence of unlawfulness which could not have been obtained with reasonable diligence before the making of the motion, the court shall entertain another motion, or a renewal of a motion, during the trial.

3. When the motion is made before trial, the trial shall not be commenced until the motion has been determined, except that, in the case of misdemeanors and offenses; the court having summary jurisdiction over such crimes and offenses may, by general rule of court, provide that the hearing and determination of such motions may be referred to the trial court for determination during the course of the trial upon the consent of the district attorney, or if no contrary general rule of court has been promulgated, the court before which the motion is made shall have discretion either to entertain the motion, or to refer it to the trial court for determination during the course of the trial if the district attorney consents thereto. When the motion is made during trial, the court shall, in the absence of the jury, if there be one, hear evidence in the same manner as

A-3

Appendix

if the motion had been made prior to trial, and shall decide all issues of fact and law.

4. If no motion is made in accordance with the provisions of this title, the defendant shall be deemed to have waived any objection during trial to the admission of evidence based on the ground that such evidence was unlawfully obtained. Added L.1962, c. 954, §1; L.1964, c. 490, eff. July 1, 1964.

§813-e. In what courts made

When an indictment, information or complaint upon which the defendant may be tried for a crime or offense has been filed in a court, or after the defendant has been held by a magistrate to answer a charge in another court, the motion shall be made in the court having trial jurisdiction of such indictment, information, complaint or charge.

Before any indictment, information or complaint upon which the moving party may be tried for a crime or offense has been filed in a court, and before the moving party has been held by a magistrate to answer a charge in another court, the motion shall be made, if in a county outside of the city of New York, in the supreme court or the county court. In the city of New York, the motion, if made prior to September first, nineteen hundred sixty-two, shall be made in a county court or the court of general sessions of the county of New York as the case may be, and, if made on or after September first, nineteen hundred sixty-two, in the supreme court.