*1 No. 1166. C. A. 7th Cir. Cook United v. States. Certiorari denied. Douglas, with whom Mr. Justice Bren- Justice
Mr. nan concurs, dissenting.
I would grant the petition on the issue of electronic surveillance.
In this prosecution criminal counsel for the defense if asked the Government had any obtained evidence means of listening devices or electronic eavesdropping.1 The prosecutor say only that “no illegal eaves- dropping devices were used.”2 He would not state any whether equipment eavesdropping had been used.3 The trial judge refused to order the disclosure.4
On appeal, petitioner contended that the Government must disclose whether there had been electronic surveil- lance, regardless of its views on the legality. The legality gave Defense counsel as his reason: example, “For on cross examination question there was some conversation, about a phone a conversation that the defendant had.” going are not “[W]e practice it a make in our office to show during Court each trial eavesdropping used, what devices we because on its might it illegal.” face be “I don't think that we have to commit ourselves in case say, ‘Judge, might it illegal, it,’ since be we did not use so that we can make a record.” represent only “I your case, Honor in this and we inwill cases, other nothing there was illegal about of the evidence we presented, illegal no eavesdropping used, devices and I don’t think that I have to tell defense counsel or not we used eavesdropping equipment.”
4“[T]hey practice sort the one who is honored things to reveal these has been left to the Solicitor General of the United States. I attorney know of no district that has made a yet. They disclosure either make it in Supreme they Court or it in Circuit, make the Seventh got but we haven’t down to the echelon lower where that has been disclosed even Solicitor General.”
of such determine, surveillance for the court to he argued, if such he asked for a to determine hearing *2 appeal devices were used.5 The asserted on Government that “there was no electronic surveillance involved by this case.” a letter supported This statement was from the Department of Justice: appro- the
“Please be informed we have contacted priate have been informed investigative agencies and microphone Cook subject was the of a direct moni- surveillance nor were of his conversations Further, tored. we are no electronic sur- informed, veillance was maintained on which were premises known to been or licensed owned, leased, have the above individual.”
Petitioner contended from that this letter was far clear it did as not state which were contacted agencies subject stated that he was not the of “direct” microphone surveillance, “indirect” surveil- suggesting Appeals lance. The Court the statement agreed that 2d prosecutor unequivocal,” 1093, was “not 432 F. 1109, and that the disclosure should have been made to the trial Yet it affirmed the without judge. conviction further inquiry. judicial
Petitioner contends that he is entitled to a determination of the existence and of electronic legality He has eavesdropping. argues the United States unequivocally eavesdrop- never stated that no electronic occurred. The ping Solicitor General relies on the letter I quoted. Moreover, which he indicates that position takes open defendant “While disclosure in constitutionally preferred procedure, court is the he submits at legality that an in camera the same time determination of required illegality as an absolute constitutional minimum under (Brief CA7, Defendant-Appellant Amendment.” Fourth pp. 62-63.)
procedure followed below is in accordance with “statu- tory procedures provided now with respect to claims of illegal electronic surveillance in proceedings occurring after 15, October 1970 . . . From now on, the United States will not even review its files determine the existence of evidence stemming from electronic surveil- lance unless defendant meets the “burden of raising issue of illegal electronic surveillance . . .
The Omnibus Crime Control and Safe Streets Act of 1968, 802, § 212, Stat. 18 U. S. C. §§ (1964 2510-2520 ed., Supp. Y), provides for electronic surveillance either on warrants issued a magistrate, § or on the sole initiative the designee of Attorney General *3 “reasonably who determines” that there is “an emer- gency situation” respecting “conspiratorial activities” which threaten the national security or which involve “organized crime.” §2518(7). The officer ap- must ply an order approving the interception within 48 hours, complying with procedures for obtaining an order of authorization. If application the is denied, or approval is not issued before the interception is terminated, the contents of intercepted communication are to be treated as illegally obtained. §2518(7).
The Act sanctions free use of intercepted information among investigative personnel, § 2517 (1). It also widely protects “evidence derived therefrom,” §§2517 (1), (2), and (3), including the giving of testimonial evidence.6 But any person whose “wire or oral communication is intercepted, disclosed, or used” in violation of the ways I have enumerated has suit for actual punitive and dam- ages and reasonable attorneys’ fees and costs. § 2520. 6 There is question the initial whether intercepted com munications relating to the offense of which petitioner was convicted are evidence of “offenses other than those specified in the order of approval,” authorization or (5). so, If §2517 “[s]uch contents and any evidence derived may therefrom be used testimony [as at trial] the Government’s raised “illegality” of issue depending questions of myriad a raise would defense of whether question to the pertain They would facts. the been Act had the of (1) by § required showing the question basic the raise and magistrate the to made “prob- was warrant, there a issued magistrate if a whether, the warrant, a were If there §2518(3). cause,” able con- was “search” the be also would question author- were time which and place, person, the fined but no warrant If there §§2518(4), (5). ized. (7), § under Attorney General action only the the raised be questions different host of “illegality.” of issue new the under decided questions new are
These mat- involving high questions important They are Act. ap- It is cases. many affect They will policy. of ters so now, here questions the we reach propriate rights the protecting used to be procedures con- within prosecution confining citizen be resolved. bounds stitutional States, S. 394 U. United Alderman v. While had States United that the was revealed here, it pending violated may which wiretapping engaged peti- convictions and tainted Amendment Fourth parte “the ex accept refused We had earlier tioner. Jus- *4 of Department by the issues determination” in 136, 137, States, S.U. 390 v. United Kolod tice, Dis- whereby the procedures out the worked Alderman ob- evidence determine Court trict 394 surveillance.” illegal of product “the tained was case concerned questions The 168. S., at U. jurisdiction competent judge of approved authorized when contents that the subsequent application judge finds on such where of this provisions with intercepted accordance otherwise the bur- upon the Government place chapter.” would seem This challenge evidence, even without knowing of its the source den of defendant. from a
1000 use “evidence originating in electronic surveillance violative of his own Fourth right Amendment to be free of unreasonable searches and Id., seizures.” at 176. That is the question here and it is obviously not controlled practice administrative or the Omnibus Crime Control and Safe Act, Streets both of which are subordinate to the Constitution. procedure to be designed here is relevant
to criminals.
Electronic today surveillance is commorvand pervasive, as we know from reports filed pursuant (3) § 2519 the Act7 and from various Senate and House investiga- 7The reported number of interceptions of communications made pursuant to the Act problem indicates the is not small. In last six months of 1968 there were 174 issued, authorizations all to state officers. forty-seven One hundred devices were installed. The aver age period of time days. authorized was 20 There were ex 128 tensions, averaging days. 20 Approximately 4,312 persons were 66,716 involved in intercepted communications. One hundred twenty-six intercepts were in dwellings and 45 were in business estab lishments. Based Report Applications Authorizing Orders or Approving the Interception of Wire or Oral Communications for the Period June 20,1968, to December 31,1968, Administrative Office of the United States Courts.
In pace did not perceptibly diminish. Total Federal State Number of applications. 304 34 270 Authorizations issued. 302 33 269 Average length of — Authorization. days 26 days 16 Extensions granted. 194 11 183 Average length of — extension.. 22 days days 14 period Total 9,019 authorized. days 462 days 8,557 days Number of devices installed.. 271 30 241 Telephone wiretap. 250 27 223 Listening device. 15 Both .
1001 the one tions, including being conducted Senator privacy apparently These Ervin.8 invasions touch reputable people only criminals also but whose social, offense or political, ideological is nonconform-
Total Federal State Facility place or authorized application
Residence 135 10 . 125 Apartment 68 7 . 61 Multiple dwelling. 14 3 11 Business establishment.... 71 10 61 living Business &
quarters. 5 2 3 Other . 9 1 Average number of intercepts —
per authorized 1,498 device. Average persons number of — per involved wiretap. Total intercepts number
(approx.) 178,300 44,900 .. 133,300 persons Total number of
involved (approx.). 13,400 4,560 8,880 Based Report on Applications for Orders Authorizing Approv- ing the Interception of or Oral Wire Comunications the Period January 1, 1969, 31, 1969, December Administrative Officeof the United States Courts.
What interceptions number of are made in cases which involve the so-called security” “national is not known. 8See Hearings Computer on the Privacy Invasion of before a Subcommittee of the House Committee on Government Operations, Cong., 89th 2d (1966); Sess. Cong. Address of Gallagher, Technology Society:., A Interest?, Conflict of Cong. 8239; Rec. Privacy and the National Data Concept, Bank Rep. H. R. 1842, No. 90th Cong., (1968); 2d Sess. Hearings, pursuant to S. Res. on Inva Privacy (Government sions of Agencies) before the Subcommittee on Administrative Practice and Procedure of the Senate Committee Judiciary, Cong., 89th Sess., pt. 1st 2 (1965). hearings being conducted Senator Ervin before the Subcommittee on Con Rights stitutional of the Senate Committee Judiciary on the not as been concluded. *6 ity. As stated in A. Westin, Privacy and Freedom 365- 366 (1967):
“As of 1960’s, the new surveillance technology is being used widely government agencies of all types and at every level of government, as well as by private agents for a rapidly growing number of businesses, unions, private organizations, and in- dividuals in every section of the United States.” No. 6560. Super- Osborn v. Rundle, Correctional intendent. C. A. 3d Cir. Certiorari denied.
No. 6564. Bellew v. Swenson, Warden. Sup. Ct. Mo. Certiorari denied.
No. 6572. Schutz v. United States. C. A. 10th Cir. Certiorari denied. Campbell
No. 6575. Georgia. v. Sup. Ct. Ga. Cer- tiorari denied.
No. 6598. Yoder v. United States. C. A. 6th Cir. Certiorari denied. Buckley
No. 6619. v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Mayfield
No. 834. Virginia. v. Sup. Ct. App. Va. Motions to dispense with printing petition reply brief granted. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 874. Brewer, Warden v. Blanchard. C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.