*1 This is not a involving pretrial case motion suppress. Rather, motion now before us em- braces all of the prosecution evidence the intro- duce at trial and common to all of these items is the issue of their obscenity Alabama, vel non. Mills v. teaches that where First rights Amendment involved, compliance procedural with formalities before allowing their vindication this Court not necessary unless procedures those are meaningful.
I would follow Mills and grant petition writ for a of certiorari and put case down for argument.
No. 71-816. Dun & Bradstreet, Inc. Kansas Supply Co., Inc. Electric opinion Justice certiorari should granted. be Winnebago Tribe of Nebraska C. A. 8th Cir. Certiorari denied. Mr. United States. is of the that certiorari should Justice Hawkins C. A. 6th United States. Cir. Certiorari denied. Mr. is of opinion that certiorari should be granted. et al. States.
C. A. 5th Cir. Certiorari denied. Mr. Justice Bren- nan would grant petition case for set argument.
Mr. Justice Douglas, dissenting.
Petitioners were suspected of maintaining an illicit whiskey still in violation of federal tax statutes. To se- cure evidence against them Treasury Department planted posed in their an undercover who agent midst as a truck driver of their vendee. After their con- gaining fidence, on occasions after our de- *2 States, cision in 347, telephoned 389 U. S. either petitioner James Williamson or a coconspirator, one Hutcheson, for ostensible purpose the of ar- finalizing rangements delivery product. the of their During their in conversations, position shape a to guide content and direction of their discussions to elicit damaging admissions. All of these com- intercepted munications were and recorded another federal officer who acted without a warrant and without knowledge of but, course, with the full cooperation of Treasury plant. After the officers ob- satisfactory tained evidence against the pair, they were arrested, indicted, and convicted after trial, at which all of the recordings were played, over objection, for the jury.
IAs have discussed before, electronic eavesdropping early crept into our law as a means of combating “fifth column” activities during wartime.1 Later, it was said that weapon was essential in the battle against organized crime. Now we learn the omnipresent electronic ear is stalking hill country in search of moonshiners. Apparently, suspect no is too unimportant to escape its reach.
Nor
any person
too important
to be excluded from
the Government’s dossiers.
recently
Information
sented to the Senate Subcommittee on Constitutional
Rights discloses
subjects
Army
intelligence oper-
Appendix
1See
my
I to
dissent in United States v. White, 401
S.U.
expressed
766-767.
I have
my
more detail than here
opposition to various forms of
spying
electronic
in Katz v. United
States,
347; Berger
389 U. S.
New York,
41;
388 U. Osborn
States,
v. United
323; Pugach
S.U.
Dollinger,
458;
365 U. S.
Silverman v.
505;
365 U. S.
On Lee
v. United
Senator Ervin, who chaired these hearings, warns this Court an amicus brief in another case, that “it is not *3 an exaggeration to talk in terms of hundreds of thousands 12 of individuals, organizations, events, and dossiers.” After related hearings concerning federal wiretapping, Senator Edward Kennedy only months ago warned his 2N. Times, Y. 29, 1972, p. 1, Feb. col. 3.
3Id., at cols. 3-4. The list named Representatives Philip Crane, Rarick, John Edwards, Don Representatives and former Adam Clayton Powell and Allard Eowenstein. 4Id., at col. 4. The list named Sargent Governors of Massachu setts and Curtis of Maine; former Governors Hoff of Vermont and Kerner Illinois; and Lieutenant Hayes Governor of Vermont. 5Id., at col. 4. 6Amicus Curiae Brief by submitted Jr., Senator Sam Ervin, Chair man of the Subcommittee on Rights, Constitutional in Laird v. Tatum, 71-288, 1971, p. O. T. 10. 7 Banks, Federal Data Computers and the Bill of Rights, Hear ings before the Subcommittee on Rights Constitutional of the Senate Committee on Judiciary, Cong., 92d Sess., pt. 1, 1st pp. 197-198 (1971). 8Id., at 197.
9Id., at 198-200.
10Id., 201, at 296. 11Ibid.
12 Brief, Amicus 6,n. at 8. colleagues frightening possibility “the the con- versations of untold thousands of country citizens monitored on secret devices being judge which no has may authorized and operation which remain in months perhaps years at a time.”
Although problem is an enormous and recurring one, our decisions articulated a coherent re- sponse. if Ironically, petitioner James had confided in a genuine confederate rather than a spy, there would be no doubt that the warrantless seizure of his telephonic communications would have offended supra. It said, however, plu- rality in United States White, 401 U. S. speakers simply must assume the that their risk confidants may tattle, and, therefore, they should assume the further risk they utter be instantaneously fed into a recorder. Yet there is a significant “qualitative difference” between electronic surveillance and conven- tional police stratagems such as eavesdropping dis- guise. Lopez (dis- senting opinion). That chasm cannot be bridged simply by invoking the conclusory proposition that one must assume the risk of being subjected to electronic surveil- lance. Under that reasoning we might also have held that Katz should have assumed the risk that telephone his booth was bugged. Obviously, citizens must bear those threats to privacy which we decide impose.
The ruse employed by the Government in this case has still a further offensive characteristic. Here the agents had the opportunity to destroy privacy but to interrogate him in a clandestine fashion without the warnings required by Miranda Arizona, v. without the assistance of counsel,
13Letter to members of the Subcommittee on Administrative Prac tice and Procedure of the Senate Committee on the Judiciary, from Senator Edward Kennedy, Dec. 1971, pp. 2-3.
without knowledge that he spoke would replayed to a court. Yet under the plurality reasoning in White such deception is permitted. Thus, both and Miranda can be circumvented through simple expedient of injecting a secret agent into a suspect situation.
I grant would this petition. Carroll Beto, Corrections Direc- tor. C. A. 5th Cir. Certiorari denied. Mr. Justice is of the opinion that certiorari should be Bogacki Supervisors Board of County Riverside et al. Sup. Ct. Cal. Certiorari denied. certiorari should be granted. Immigration Carrasco-Favela
Naturalization Service. Mr. Justice is of the opinion that
certiorari should be granted. Secretary 71-931. Volpe, of Transportation, et al. D. C. Federation of Civic Assns. et al. C. A. D. C. Cir. Certiorari denied.
Mr. Chief Justice Burger, concurring.
I concur in the denial of certiorari in this case, but solely out of considerations of timing. Questions of great importance to the Washington, D. C., area sented the petition, not the least of which is whether the Court of Appeals has, for a second time, unjustifiably