BERGER V. NEW YORK, 388 U. S. 41 (1967)

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U.S. Supreme Court

Berger v. New York, 388 U.S. 41 (1967)

Berger v. New York

No. 615

Argued April 13, 1967

Decided June 12, 1967

388 U.S. 41


Petitioner was indicted and convicted of conspiracy to bribe the Chairman of the New York State Liquor Authority based upon evidence obtained by eavesdropping. An order pursuant to § 813-a of the N.Y.Code of Crim.Proc. permitting the installation of a recording device in an attorney's office for a period of 60 days was issued by a justice of the State Supreme Court, after he was advised of recorded interviews between a complainant and first an Authority employee and later the attorney in question. Section 813-a authorizes the issuance of an "ex parte order for eavesdropping" upon "oath or affirmation of a district attorney, or of the attorney general or of an officer above the rank of sergeant of any police department." The oath must state

"that there is reasonable ground to believe that evidence of a crime may be thus obtained, and particularly describing the person or persons whose communications . . . are to be overheard or recorded and the purpose thereof."

The order must specify the duration of the eavesdrop, which may not exceed two months, unless extended. On the basis of leads obtained from this eavesdrop, a second order, also for a 60-day period, permitting an installation elsewhere was issued. After two weeks of eavesdropping a conspiracy, in which petitioner was a "go-between," was uncovered. The New York courts sustained the statute against constitutional challenge.

Held: The language of § 813-a is too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area, and is, therefore, violative of the Fourth and Fourteenth Amendments. Pp. 388 U. S. 45-64.

(a) The Fourth Amendment's protections include "conversation," and the use of electronic devices to capture it was a "search" within the meaning of that Amendment. P. 388 U. S. 51.

(b) New York's statute authorizes eavesdropping without requiring belief that any particular offense has been or is being committed, nor that the "property" sought, the conversations, be particularly described. Pp. 388 U. S. 55-58.

(c) The officer is given a roving commission to "seize" any and all conversations, by virtue of the statute's failure to describe with particularity the conversations sought. P. 388 U. S. 59.

Page 388 U. S. 42

(d) Authorization to eavesdrop for a two-month period is equivalent to a series of searches and seizures pursuant to single showing of probable cause, and avoids prompt execution. P. 388 U. S. 59.

(e) The statute permits extensions of the original two-month period on a mere showing that such extension is "in the public interest," without a present showing of probable cause for the continuation of the eavesdrop. P. 388 U. S. 59.

(f) The statute places no termination date on the eavesdrop once the conversation sought is seized, but leaves it to the officer's discretion. Pp. 388 U. S. 59-60.

(g) While there is no requirement for notice in view of the necessity for secrecy, the statute does not overcome this defect by demanding the showing of exigent circumstances. P. 388 U. S. 60.

(h) The statute does not provide for a return on the warrant, thus leaving full discretion in the officer as to the use of the seized conversations of innocent as well as guilty parties. P. 388 U. S. 60.

18 N.Y.2d 638, 219 N.E.2d 295, reversed.

Page 388 U. S. 43

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