*1 County Appellant, Relator ex Arnold, State rel. County, Respondent. Court of Rock Argued May 7, No. State 191. June 1971. Decided (Also reported 354.) 187 N. W. *2 appellant For by Garrigan, there awas brief Keithley, O’Neal, DeLong Dobson, Elliott & and John E. *3 Borgerding, argument by all Beloit, of oral Mr. and Borgerding and Mr. Theodore W. Harris Racine. of respondent argued
For the cause Peter A. was Peshek, attorney general, assistant with whom on the Warren, attorney brief general, were Robert W. and Sheehan, attorney county. John E. district of Rock Arnold, secretary C. J. and executive Hallows, Housing director of the Authority, Beloit had conversa- August 28, 29, 1970, 30, tions on and with Robert Lock- hart who was a Beloit construction contractor and who accepted low-cost-housing had been the bidder for 75 units to be constructed in Three Beloit. conversations occurred in office Lockhart’s and fourth conversation by telephone held with Lockhart at home. Lieu- was county depart- Toler tenant Richard of the Rock sheriff’s microphones ment had concealed under Lockhart’s desk and wired to a mechanism which Toler sur- reptitiously operated preserve monitored and the oral telephone The conversations. inter- was gave cepted recorded Toler. Lockhart his written
437 Arnold interceptions, consent for these electronic but knowledge had of thereto. them did question At of whether the outset raises state conceding prohibition proper remedy this writ ais expanded traditional of the writ role has acting prohibition keeping be inferior courts from remedy by yond jurisdiction adequate their when no Reynolds v. appeal or otherwise State ex rel. existed. See 876; County 2d (1960), 560, Court 11 2d 105 N. W. Wis. 250, (1969), State ex rel. v. 44 2dWis. Jefferson Roraff recog Nonjurisdictional 170 now N. W. 2d 691. error is ground proper the writ nized as for the issuance of appeal when redress comes too late effective inadequate, a need for intervention when there is great complete hardship denial of avoid rights litigant, presented question there is when great Drugsvold public v. immediate concern. 228, (1961), Small Court 13 108 N. W. Claims Wis. 2d Krueger 648; Gaynon (1966), 31 2d ex rel. v. State Wis. 437; 609, also: ex rel. 2d 143 N. 2d see State Sucher W. 611; (1962), County 2d 2d Court N. W. Wis. ex rel. 2d State Schulter v. Wis. Roraff N. W. question propriety writ the use original jurisdiction court took on when was decided constitutionality question ground involved regulation relating of elec to the state’s a new statute compelling in of sufficient tronic surveillance public immediate to warrant this court’s to the terest *4 Although case in the this to us comes consideration. admissibility im evidence, the statewide context underlying an immediate determination of the portance of ex rel. Cortez v. Board Fire & question State makes 130, 141, (1970), 49 2d 181 N. Wis. W. 2d Police Comm. (1970), 45 ex v. Ceci 2d 378, rel. Cullen Wis. and State inapplicable. 175, 2d 432, 173 N. W.
438
It is contended that into evidence admission recorded conversations obtained electronic surveil- party lance one violates with the consent of fourth and United States fourteenth amendments of the argues devices electronic Constitution. Arnold the use intercept mean- conversation is search within his Berger York New ing v. amendment, of the fourth 2d (1967), 51, Sup. 1873, Ed. 41, 388 U. 18 L. 87 Ct. S. 1040, being constitu- a search he is entitled to the See protections applicable tional to search warrants. Sup. v. Katz United States 347, 354, 88 (1967), 389 U. S. 507, brief on Ct. 19 L. Arnold relied in Ed. 2d 576. v. 1969), United States White (7th 405 Cir. Fed. argument prior appeal, to oral on Seventh But decision, appealed which the United had been Circuit’s v. States Supreme United Court, States was reversed 745, 1122, White Sup. (1971), 401 U. S. 91 28 L. Ed. Ct. 2d 453. White, justices
In four eaves- held that electronic dropping permissible amendment was under fourth ground right be- on the no constitutional was involved constitutionally “justifiable cause no defendant has protected expectation that a with whom he conversing will then or later not reveal the conversation 745, 749, Sup. 1122, 28 L. police.” U. S. Ct. And, 2d 453. to the Ed. since it, may intercepted by eavesdrop- it electronic disclose Although thought prior ping. to this decision it was States, supra, Katz United electronic decided that eavesdropping permissible under the fourth supreme amendment, four these members of the they in Katz applied indication saw stated interceptions party’s or to consensual disturb On Lee Case.1 A fifth reached member result 747, Sup. Lee v. United States 343 U. On S. Ct. held Ed. the surveillance 96 L. that case did not trespass occurred, the constitution because no had violate noted eavesdropping of a conversation with the connivance of one *5 judgment set court concurred in for the reasons Katz. su- forth in Four his dissent members grounds. preme on While this court dissented various diversity its satisfactory not because case disagreement prior opinions, on what court’s holding, it meant, plurality nevertheless, and decisions being con- controls, least, issue of for the time at stitutionality raised in this case.
However, priv- were we think conversations Arnold’s ileged by in character their admission statute recordings tape in vio- means of would be Surveillance Control lation of Wisconsin Electronics law, through 968.33, Law, sec. 968.27 Stats. This sec. replaced which created ch. Laws of was prohibiting Wiretapping 885.36, Law, Wisconsin’s sec. intercep- tape-recorded evidence of the admission into telephonic Sur- conversations. The Electronics tions in- expressly prohibits electronic Control Law veillance terceptions of both wire oral communications defining communication,” exceptions. In “oral sec. some any communica- means oral 968.27 that term states exhibiting expectation tion uttered interception subject under is not communication such expectation. privileged justifying The circumstances recog- oral character of communications also wire (4). 968.29 nized sec. expectation privacy may have not
While such White, under immaterial basis that is since constitutional recognition confidentiality important in the discovering legislative area process of intent eavesdropping which condemned the common considering statute, seek In court must law. language legislative disclosed from the of the intent as problem. pluiAity parties no fourth amendment raised independent grounds these two viewed concluded in White away although trespass theory swept Katz had fourth- protection, eavesdrop- it did affect the consensual amendment ping On Lee was also based. it ruled on which *6 subject in scope, history, context, statute relation to its object matter, and accom- be or intended to remedied plished. (1962), Scanlon Menasha Wis. 114 N. 2dW. rightly jealous free- people
The American are their of “bugging” dom privacy by of police. from While society improved complex require the demands of our they detection, require methods crime a do right privacy indiscriminately in- citizen’s must be by may vaded electronic or with surveillance invaded be only to a or conversa- wire oral having privileged tion a character.
The basic authorization for an electronic eaves- dropping is in 968.28, Stats., restricted sec. re- which quires a law apply enforcement circuit officer to authorizing an approving court for order or the inter- ception aof oral wire or communication. authori- Such permitted only zation may when the intervention provide prior if a evidence or restricted authorization produced has evidence of the commission of certain offenses. These crimes murder, kid- are restricted napping, bribery, dealing commercial extortion, and with dangerous drugs conspiracy involving or narcotics such offenses. intercepted
The use and disclosure wire authorized 928.29, oral communications is dealt with in sec. (1) (2), Stats. In subs. law enforcement use such material in restricted to use exercise proper performance professional in duties in- vestigative process; only sub. disclosure is permitted who has received such informa- tion intercepted authorized means and which accordance with the state act. The of such in- results may terceptions be giving testimony disclosed while proceeding under oath affirmance in a court or be- magistrate grand jury. privileged fore a No other communication, although or oral intercepted wire accordance or in violation of federal state law or relating law surveillance, privileged to electronic loses its character. an exception privileged com-
There this rule (5) provides munications sub. which that when relating interception authorized-court material discloses to an specified offense other than that in the order authorizing the be interception, information proper performance used official duties But, law-enforcement officer. if the of such results interception ap- are to court, be used as evidence plication forty-eight must within made hours of interception judge original upon who acted *7 application. judge may Such the such authorize of use interception interception evidence if he finds the otherwise in accordance with the and federal state laws, electronic 968.29, surveillance sec. Stats. provides
The 968.30, pro- act in Stats., sec. a detailed application cedure for the a authority to for an for authorizing approving order interception the of wire and oral requirements communications. Included in the showing probable ais of par- cause and of the details alleged ticular committed, offense to be about de- scription of nature and facilities, location of a description type of sought be communication identity intercepted, persons of the and a and full complete investigatory statement whether not other procedures been tried failed have and other details. interceptions may limited in are time and the court require applicant testimony furnish or docu- mentary support under in evidence oath applica- of the tion. 968.31, Stats., prohibited
In sec. the act deals with the interceptions disclosures wire oral communi- penalties prescribed Certain are cations. for intentional interception intercepted and disclosure of such com- Exceptions penalties munications. to these in are made (2) (a), 968.31 which interceptions sec. allows limited tele- by employees operator of a switchboard engaged activity they phone in the while utilities are Exception rights employer. is also protecting of their acting of title (b) person under color made sub. person intercept oral communications where such parties party of the communication or where one to the given to such prior consent communication has to the (2)(b)), (968.31 which interception. this section It is interceptions authorizes both the the state claims in- of such results case and use intercep- terception. “authorize” section not This does has parties to the tions when one interception merely given prior but such states is “not unlawful.” admissibility contents think into evidence
We governed by solely eavesdropping interceptions sec. “intercepted 968.29(3), Stats., and communications disclosed with” the law accordance state being interception admitted in evidence. An intercepts consent of one under color of law who with the not approval but without of a circuit court is required “intercepted in with” as sec. accordance “any interception (3). au- 968.29 Nor such means making 968.28 968.33 .” . . While thorized ss. (2) interception does unlawful, (b), 968.31 sec. procedure not “authorize” it as which is done sec. requiring application 968.30 for electronic surveillance *8 to the circuit court.
Interception thing; in is one disclosure evidence declaring interceptions In court is another. with con- recognizes party the of one “not unlawful” act sent the investigative in crime, to detect need of tool this but recognizes denying evidence the use as the statute its right privacy people. Consequently, of free the balance by police may excepted the well activities be from such 968.31 but penalties sec. it from does not follow exception interceptions stand results of equal footing on an court with those authorized 968.30, under are in evi- sec. and therefore admissible produce dence. If electronic evidence surveillance is party court on the basis of consent one privileged communication conversation, then there is no entirely and was in the it act useless include provisions careful evi- delineated under which admissible might dence be obtained electronic surveillance safeguards approval. All would of sec. 968.30 naught supplanted be for be privileged Likewise, to a sec. communication. (4), preserving privileged 968.29 com- character meaningless. munication would be Law The Wisconsin Surveillance Control Electronics patterned after Title III of federal Omnibus 2510, Control and Safe of 1968. 18 Streets Act USCA seq. et Supreme The United in- States Court has not terpreted although in these of the sections federal act White, United supra, States v. Mr. Justice Harlan commenting his dissent on another stated issue way exempts of dicta federal act consensual participant monitoring by agents from law enforcement general against prohibitions surveillance without judicial authorization makes admissible the fruits language in court. do not think the We the Wis- reasonably consin statute or can means that construed reach such a result. While United States law was holdings On in the context of Lee based Lopez,2- Berger enacted in it was also v. the context of York New and Katz United States, supra, which re- quire procedure the warrant as basis the admissibil- ity into eavesdropping. fruits electronic States, supra, Lopez On Lee v. United footnote 1. v. United Sup. 373 U. S. States Ct. 462; L. Ed. 2d Rep. (90th Cong., Sess., 1966). see No. 1097 at 93.94 So. *9 Relating Standards to Electronic Surveillance approved March,
the American Bar Association provides surreptitious over- Standard 4.1 that “The hearing recording of a wire oral communication of, by, with parties the consent com- the the permitted, munication should unless . .” stan- . This change passage dard awas after the act the federal original from required the standard which the consent parties. closely parallels all federal Standard 5.16 the allowing 968.29, Stats., law and sec. testi- disclosure mony interceptions if the contents the were “obtained means authorized these standards.” standard, question Under is, this still means what are ? authorized interceptions
While electronic were this case “not unlawful” Lockhart, because of the we consent of destroy hold privileged that his consent does not character of communications were means “authorized” or “in accordance with” the Wisconsin Consequently, Electronics Surveillance Law. Control interceptions results are not in evi- admissible qualifying dence chief as under 968.29 (8), sec. Stats. By restraining temporary injunction Court. —The county county court of Rock proceeding from case George “State of Arnold,” entitled Wisconsin v. hereby prohibition terminated and the writ of made absolute. (dissenting). W. In a football Robert Hansen, J.
game, pass “intercepted” forward when a member opposing team, uninvited and unwelcome, comes passer between the and the grabs intended receiver and pigskin. “intercepted” Is it also relayed when it is teammate, or thrown to a with the full consent cooperation passer of either or receiver or both ? answering affirmatively
In an evidentiary equivalent gridiron-oriented query, majority ignores distinction between the of an oral conversation *10 sur- party on of and the uninvited or behalf to it private Others veillance of a an outsider. conversation Court,1 including Supreme not, United have States the advisory on committee the American Bar Association police function,2 contributors.3 the law review 1 surreptitious of “. . . thus not surveillance We deal here with private . but . . . with the use conversation outsider . . party of record of a conversa a device to make an accurate party Osborn v. United tion about which that later testified. . . .” 323, 327, Sup. 429, (1966), L. Ed. 2d States 385 Ct. 17 U. S. 87 (holding evidence). 394 admissible 2 always and most “. . . the law must seek to obtain best mainly Traditionally, consisted reliable evidence. that evidence has they testimony later of heard of witnesses who saw or what fallibility however, better, of reveal court. No man knows testimony . is trained in the law. . . human than that man who through [E]very record the conversations effort should made to very recording reproduce For a will the best available means. spoken significance from inflec all the added that comes words with aspects speech. goal emphasis tion, of and other of oral . . . The finding the truth in the criminal trial demands no less. The being presented defendant, too, has a stake in the best evidence jury. Thus, court and as such ‘involves to the any “eavesdropping” proper term.’ Lo whatever sense that [(1963), Sup. 1381, pez States, 373 U. 439. 83 Ct. United S. unthinkingly placed in It not be 10 L. Ed. should 462] category wiretapping bugging. or . . .” American Bar same Relating Surveillance, Association, to Electronic Standards sec. 4. pages 126, a,1 127. engage Every in a time we conversation we run the “. . . party may betray may us. He what that the other reveal risk relationships. risks are inherent in human have said. . . . Such we They from risk no different are in essence arranged to record or broadcast what we we confide has whom degree say but not in essence. This is a distinction .... without is recorded transmitted a conversation “Where entirely concepts any participant, different set Wiretapping-Eaves- (Emphasis supplied.) The apply. . .” must . View, Counsel’s Bennett dropping A Edward Problem: Defense (1960), Schwartz, 866. also: Williams, Rev. See 44 Minn. L. Legalize Wiretapping, Proposals to Pa. L. On Current U. 157, 166, Rev. recording participant’s between
The distinction
sig
private
purloining
conversation is
an outsider’s
outsider
nificant.
It is
uninvited
surveillance
5 regulatory
subject of federal
state
Supreme
decisions
measures, and United States
Court
“bugging”
finding
“wire
limitations to
constitutional
any
parties
on
tapping”
without
the consent
highest
made
court,
land,
in the
the line. The same
has
statutory attack,
that,
clear
to constitutional or
rely
mem
upon
oral
need
to an
ory alone,6
contents
transcribe
record the
*11
This
telephone
person.7
a
had
another
4
1968,
Act
Crime Control and
Streets
Omnibus
Safe
2510,
seq.
18 USCA
et
5
427,
1969,
Law,
Wisconsin Electronic Surveillance
Laws
eh.
968.33,
secs. 968.27 to
Stats.
6 “Stripped
petitioner’s argument
essentials,
to
amounts to
its
saying
right
rely
possible
has a
to
on
flaws
that he
constitutional
agent’s
agent’s credibility
challenge
memory,
or to
suscepti
being
corroborating
without
that
is not
beset
evidence
impeachment.
argument
justify excluding
ble
For no other
could
agent
testify
a
an accurate version of
conversation that the
could
memory.
recording
to from
of the
is not
trustworthiness
[The
challenged.]
offering
petitioner
that
took in
a
We think the risk
fairly
inspector]
bribe to Davis
internal revenue
included the
[an
accurately reproduced
court,
risk that
the offer
would he
memory
Lopez
recording.”
faultless
whether
or mechanical
v.
(1963),
427,
Sup.
1381,
439,
States
83
United
373 U. S.
Ct.
10
L.
Ed.
7
previous
by today’s
cases,
decision,
“In
which are undisturbed
upheld,
Amendment,
the Court has
the Fourth
as reasonable under
(1) by
po
admission at trial of
an
evidence obtained
undercover
agent
speaks
knowledge
lice
to whom a defendant
without
that
employ
police,
States,
he is in the
v.
United
385 U. S.
Hoffa
(2) by
recording
(1966);
293
device hidden on the
informant, Lopez
States,
(1963);
such
v. United
373 U.
427
S.
States,
(1966);
(3)
Osborn
United
447 holding including ways, variety do in a he what can hear away phone his ear so that someone from on secretary listen being having said,8 the wife is recording attached device extension,9 of a use testify as phone.10 he entitled to the When language of the conversation, content can there commentary, “. . . Bar American Association overhearing or objection of an to the use valid doing, ordinarily in risks inherent so another he all the takes public speaks cluding make he will the risk that man whom logical ex reasonable It he has heard. ... is but what hearer, principle that a take the risk that tension of man repetitions, for later verbatim what he hears free memorize transmitting Katz v. . . .” it to another. instead it Sup. 507, 347, 363, (1967), Ct. 19 88 389 S. United States U. White, concurring.) (Mr. Ed. Justice L. 2d 576. way in in no if differ . . The conduct of the would “. message repeating held out his handset so he stead of see no distinction between another hear out of it. We could permitting an extension tele an outsider to use sort of action and purpose. phone itself . . The communication same . secrecy privileged, party may other to mere and one not force the ly by telephone. using a . .” Rathbun v. United States . 161, 110, 111, Sup. 2d 134. U. 2 L. Ed. S. Ct. States, quite Rathbun v. United “The case is thus similar to statutory against sustained attack the 355 U. S. in which we testimony policeman to a admission in *12 telephone he the con overheard on an extension with Lopez States, a United sent of the conversation.” v. supra, page at 439. 01 ‘eavesdropping’ . . Indeed this case involves no whatever any proper sense of that term. The did not an Government use electronic device to listen in on it could not other conversations Instead, have heard. wise device was used to obtain the possible most reliable evidence of a conversation in which the Gov agent participant agent ernment’s own was a and that which was fully entitled disclose. And the device . . . neither saw nor agent Lopez States, supra, heard more than the himself.” United page (Where inspector, equipped at internal revenue 439. pocket recorder, a wire recorded his a conversation with bribe- offering owner.) cabaret recording product at and device, introduction its trial.11 during
As use such recorded corroboration contrary majority a con- case-in-chief, reaches making recording clusion the conversation participant equivalent or a for of electronic the exact painting outsider. surveillance a mule This hunting. zebra, going resemble zebra But then change paint does not mule into a zebra. appellant housing soliciting a official,
The
accused
sought
bribe,
recording of
to have the
his conversation
grounds.
with the contractor barred on constitutional
majority concedes,
reluctantly,
almost
ground
from
was
under such contention
cut
reversing
Supreme
decision,
United
recent
States
Court
finding
appeals
a federal
court of
no constitutional
conversation,
barrier
to introduction of
identity
accuracy
bribery
established,
in a
case.12
That
at the
other end of the line
“wired
receiving
no
sound” created
constitutional bar to
into
evidence the
conversation,
recorded
re-
version
parties
corded with
one
to it.13
Association,
Relating
American Bar
Standards
to Electronic
Surveillance,
page
4.1 a at
sec.
gives
protection
“. . . If
wrongdoer
the law
to the
whose
accomplice
police agent,
trusted
becomes
neither
should it
protect
agent
him when that same
has recorded or transmitted the
prove
conversations
are
which
later offered in evidence to
State’s case.” United States v.
745,
White
401 U. S.
Sup.
Ct.
a communication has communication the given prior inter- consent to such ception.” exactly exception exemption the situ describes case us. it is considered ation the before Whether agent contractor police the officer acted for the that as give did no more than or whether the contractor housing recording for the conversation with his finding official, requires record here that recording legal entirely specifically excluded made is However, from the control statute. surveillance majority is procedure followed that while concludes legislature legal in specifically proper, the declared may participant in a conversation tended that may it, may recording, it record it. make but not use He during actually used evidence of what was said though clearly recorded even it the conversation If he of what whom.14 was said best possibility probability that one of his on the other. Given only speculation colleagues cooperating police, it is substantially dif assert that utterances would be defendant’s any thought security pos ferent or less if he also it his sense colleague suspected sible that wired for sound. . . .” Id. page at recording many produce An electronic “. . . will times rendition of what defendant has said than will more reliable memory agent. police the unaided It also be that with likely in existence it is less the informant will change injury mind, suppress threat less chance will *14 transpired to the record to corrobo intends use of what charge testimony or rate his or exonerate himself from suspicion wrongdoing, court authoriza he must secure recording in tion advance for and what was what he said suggested course, said to him.15 can Of he follow this procedure only major felony likely suspected, a or to if be established.16 If he had to believe that reason prospective life caller will do no than threaten more given wife, or make cannot obscene to his he be remarks approval not advance, court and the record made is any proceeding. admissible as evidence in Such strange and strained not to be found construction is It into it. the law. has be read As been held has construing statute,17 after federal which similar patterned, find law was the writer would Wisconsin unfavorable evidence and less chance that cross-examination will testimony. obviously confound the Considerations these like do prepared favor the defendant but we are not to hold that a de right fendant who has no constitutional to exclude informer’s testimony privilege unaided against nevertheless has a Fourth Amendment question.” a more accurate version of the events Id. page at 753. 1 5 968.28, Stats., provides: attorney general together “The Sec. attorney any county may approve request with the district investigative apply or law enforcement officer to county to the cir interception place cuit court in the take where for authorizing approving interception order of wire or oral communications. . . .” 968.28, Stats., provides: Sec. "... The authorization shall permitted only interception may provide when such or has provided evidence of murder, the commission of the offense of kidnapping, gambling, bribery, dealing commercial extortion and dangerous drugs any conspiracy in narcotics or any to commit foregoing offenses.” party telephone “. . . Each ato conversation takes the risk may the other telephone have an extension allow another to overhear the conversation. When such takes place any privacy there has been no violation of par of which the may complain. Consequently, ties element of section in terception, (Emphasis has not occurred.” original.) Rathbun v. States, supra, page United at holding inadmissible as statutory basis or with on made behalf a record of conversation. in such participant of a the consent finding involved the statute writer So the dissents — police officer here apply made not to appel- contractor who claims consent of the with full However, the writer him. lant bribe from solicited holding that, majority if the statute concurs with into admission to ban be construed somehow *15 in this the state part the case-in-chief of as of recorded evidence. of case, bar the use does not it the approach followed an extension This is prior inconsistent the court limited use where this case impeachment situ- evidence to substantive as statements to that, testified ations, requiring “. . . the witness has present contrary manner in a the same events the 18 limiting prior in- In use of proceedings.” thus party testifies in to when the statements consistent anticipated approach contrary manner, con- Supreme to Court as the United States taken stitutionally defective confessions.19 right warning appointed Harris, no of a to
In because questions state- given asked, before were was counsel con- police were defendant to ments made Supreme stitutionally The United States inadmissible. Harris that: Court ruled provided Miranda cannot be perverted “The shield way defense, perjury by free to of a into license use prior with risk of confrontation inconsistent
from the petitioner’s credi- hold, therefore, utterances. We bility impeached appropriately earlier use was his 20 conflicting statements.” 18 (1969), 230, 241, 41 Wis. 2d Gelhaar v. State N. W. 163 609. 19 Sup. Harris v. New 401 Ct. 28 York U. S. 91 L. Ed. 2d 1. page at Id. applied constitutionally
What ad- to a inadmissible i.e., police, permitting mission to im- made for its use peachment purposes, applies recording of well as to conversation of a participant, constitution- illegal ally statutorily admissible and declared be not in Harris: for the reason well stated “Every testify privileged criminal defendant defense, own privilege do so. But refuse right per- cannot be construed to to commit include jury. . . finding admitting
While reason for into sound challenged recording stage any evidence the at proceeding, modify- majority’s the writer concurs in the ing request prohibition for writ of to include during presentation admission into evidence here, Harris, case-in-chief. For the recorded use impeachment purposes issue the—on credibility to do no . more than to “. . utilize —is truth-testing adversary process traditional devices recognize . . .” and to that: “The of a function trial criminal is to seek out charges brought falsity determine truth or *16 against the .. .” defendant. writer authorized state that Mr. Justice Leo joins Hanley B. in this dissent. page Id. at 225. page Id. at 225. 23 Lopez States, supra, v. United page at