388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967)
The investigation began in 1962 when Ralph Pansini complained to the New York County District Attorney's office that State Liquor Authority agents had seized his bar and grill books without cause.1 Pansini asserted that the raid was in reprisal for his failure to pay a bribe for a liquor license.2 Numerous complaints had been filed charging the payment of bribes by applicants for liquor licenses.3
On the direction of the District Attorney's office, Pansini, equipped with a minifon recording device, interviewed an Authority employee.4 The employee advised that the price for a license was $10,000 and suggested that Pansini contact attorney Harry Neyer.5 Neyer subsequently told Pansini that he had worked with the Authority employee before and that the employee was aware of the going rate on liquor licenses downtown.6
On the basis of this evidence, an eavesdrop order was obtained from a Justice of the State Supreme Court.7 The order permitted the installation, for a period of 60 days, of a recording device in Neyer's office.8 On the basis of leads obtained from this eavesdrop, a second order was obtained permitting the installation of a recording device in the office of Harry Steinman for a like period.9 After some two weeks of eavesdropping, a conspiracy was uncovered involving the issuance of liquor licenses for the Playboy and Tenement Clubs.10 Petitioner Ralph Berger was indicted as a go-between for the principal conspirators.11
During the period of surveillance, the petitioner was overheard discussing the alleged bribe with Steinman and others.12 At petitioner's trial, the recordings of these conversations were introduced in evidence over his objection.13 The recordings were played to the jury and transcripts were distributed.14 The jury returned a verdict of guilty, and petitioner was sentenced to a term of years in prison.15
The Appellate Division of the New York Supreme Court affirmed the conviction, as did the New York Court of Appeals.16 The Supreme Court granted certiorari limited to the question of the validity of the New York eavesdropping statute under the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments.17
Whether New York's eavesdropping statute violates the Fourth and Fourteenth Amendments by authorizing orders without a showing of probable cause that a particular offense has been or is being committed?18
The Fourth Amendment commands that no warrants shall issue but upon probable cause supported by oath or affirmation.19 It also requires that the warrant particularly describe the place to be searched and the persons or things to be seized.20 Probable cause exists where the facts and circumstances within the affiant's knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been or is being committed.21
Yes. The statute authorizes an ex parte order upon the oath of a district attorney or police officer above sergeant rank.22 The oath need only state that there is reasonable ground to believe evidence of crime may be obtained.23 There is no requirement that a particular offense be identified.24
In this case the initial order for the Neyer office and the subsequent order for the Steinman office rested on the Pansini complaint.25 These facts supplied at most a generalized suspicion of bribery rather than probable cause for any specific crime. The Court therefore held the statute facially invalid because it permits general warrants condemned since Entick v. Carrington.26
The statute violates the Fourth and Fourteenth Amendments because it dispenses with the particularized probable-cause showing the Constitution demands.27
Related opinions on this issue
Justice Black dissented from the majority's holding that the New York statute was unconstitutional on its face.28 He argued that the Fourth Amendment contains no specific prohibition against the use of electronic eavesdropping devices.29 In his view, the use of such devices is a proper means of law enforcement when authorized by a court order based upon probable cause.30
The New York statute provides sufficient safeguards to satisfy constitutional requirements by requiring a judicial order based on reasonable ground to believe that evidence of crime may be obtained.31 Justice Black would have affirmed the conviction because the evidence obtained through the authorized eavesdrop was properly admitted at Berger's trial and showed the petitioner to be a briber beyond all reasonable doubt.32
Whether the statute violates the Fourth and Fourteenth Amendments by failing to require that the conversations to be overheard or recorded be particularly described?33
The Fourth Amendment requires that a warrant particularly describe the place to be searched and the persons or things to be seized.34 In the context of eavesdropping this demands a particular description of the communications to be intercepted so that the executing officer is not left with a roving commission.35
Yes. The statute requires only that the order name the person or persons whose communications are to be overheard and the purpose thereof.36 It imposes no requirement that the conversations themselves be described with particularity.37 The orders in this case therefore authorized the seizure of any and all conversations occurring in the Neyer and Steinman offices for sixty days.38
The Court held that this failure to particularize the conversations to be seized rendered the statute unconstitutional on its face because it authorized the indiscriminate use of electronic devices condemned in Osborn v. United States.39
The statute violates the Fourth and Fourteenth Amendments because it permits general searches for conversations rather than particularized seizures.40
Related opinions on this issue
Justice Harlan dissented on the ground that the statute satisfies the particularity requirement by identifying the place and the persons whose communications are to be intercepted.41 He maintained that the identification of the place and persons is the equivalent of the particularity the Fourth Amendment demands for tangible objects.42 Justice Harlan would have affirmed the conviction because the statute is constitutional on its face and was constitutionally applied in this case.43
He viewed the majority's condemnation of the statute as overly broad given the judicial supervision already built into the New York procedure.44
Whether the statute violates the Fourth and Fourteenth Amendments by authorizing eavesdropping for up to two months without requiring prompt execution or a termination date once the sought conversations are seized?45
The Fourth Amendment requires that warrants be executed promptly and that searches be terminated once the objects described are found.46 A two-month authorization without any requirement that the eavesdrop cease when the targeted conversations are obtained constitutes a continuing series of intrusions rather than a single limited search.47
Yes. The statute permits an order to remain effective for up to two months and allows extensions on a mere showing that extension is in the public interest.48 There is no requirement that the eavesdrop be terminated once the conversations described in the order have been seized.49 The orders here authorized continuous twenty-four-hour surveillance of the Steinman office for sixty days even after the conspiracy involving the liquor-license bribes had been uncovered through the Neyer eavesdrop.50
The Court held that such prolonged and open-ended surveillance exceeds the limits the Fourth Amendment places on the duration and scope of any search.51
The statute violates the Fourth and Fourteenth Amendments because it authorizes extended and indefinite intrusions without the temporal limitations the Constitution requires.52
Related opinions on this issue
Justice Stewart concurred in the result on the narrower ground that the affidavits supporting the Steinman order failed to meet the rigorous standard of probable cause required for an intrusion of this scope and duration.53 He emphasized that the need for particularity and evidence of reliability is especially great in electronic eavesdropping cases because of the broad invasion of privacy involved.54 Justice Stewart would have reversed the judgment because the showing of justification did not match the degree of intrusion even though he believed the statute itself was constitutional.55
He viewed the affidavits as providing only conclusory assertions rather than underlying facts that would permit the judge to evaluate the showing independently.56
Whether the statute violates the Fourth and Fourteenth Amendments by permitting extensions of the eavesdrop period on a mere showing that extension is in the public interest without a new showing of probable cause?57
Yes. The statute allows the original two-month period to be extended or renewed upon a showing that extension or renewal is in the public interest.60 It does not require the applicant to demonstrate present probable cause for the continued intrusion.61 The second order for the Steinman office was obtained on leads from the Neyer eavesdrop and was later extended without any new factual showing that additional evidence of the specific bribery conspiracy remained to be seized.62
The Court held that this procedure permits successive intrusions on the basis of the original and now-stale grounds, thereby violating the Fourth Amendment's insistence on contemporaneous probable cause.63
The statute violates the Fourth and Fourteenth Amendments because it allows extensions without renewed probable cause.64
Related opinions on this issue
Justice Douglas concurred on the additional ground that electronic surveillance constitutes a search for mere evidence that violates both the Fourth and Fifth Amendments regardless of the nicety with which a warrant is drawn.65 He viewed any statute authorizing such surveillance as placing an invisible policeman in the home or office and therefore unconstitutional.66 Justice Douglas argued that even a discreet and selective wiretap or bugging is the greatest of all invasions of privacy because it places a government agent in the bedroom, the business conference, and the lawyer's office.67
He maintained that the traditional wiretap or electronic eavesdropping device constitutes a dragnet that sweeps in all conversations within its scope without regard to the participants or the nature of the conversations.68
Whether the statute violates the Fourth and Fourteenth Amendments by lacking any requirement for notice to the person whose privacy is invaded or for a return on the order showing what was seized?69
The Fourth Amendment requires that the person whose premises are searched receive notice and that the officer executing the warrant make a return showing what was seized.70 The absence of both requirements leaves the officer's discretion unchecked and denies the affected person any opportunity to challenge the seizure.71
Yes. The statute contains no provision for notice to the person whose conversations are intercepted and no requirement that the officer executing the order file a return describing the conversations that were recorded.72 The trespassory installation of the device in the Steinman office therefore proceeded without any notice to Berger or Steinman and without any subsequent accounting to the issuing judge of the conversations that were seized.73 The Court held that these omissions render the statute unconstitutional on its face because they permit unconsented entry and indefinite retention of seized conversations without the procedural safeguards that attend conventional warrants.74
The statute violates the Fourth and Fourteenth Amendments because it dispenses with notice and return requirements essential to judicial supervision.75
Related opinions on this issue
Justice White dissented on the ground that the Steinman affidavits satisfied the Fourth Amendment requirements of probable cause and particularity when read in light of the prior Neyer order.76 He argued that the Court should examine the actual circumstances of the application rather than strike the statute on its face.77 Justice White would have affirmed the conviction because the search and seizure in Steinman's office complied with constitutional standards.78
He noted that the affidavits described the crime, the specific room, the principal object of the search, and the specific conversations sought, and he viewed the judicial supervision provided by the statute as adequate.79