Benanti v. United States

PETITIONER:Benanti
RESPONDENT:United States
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 231
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 355 US 96 (1957)
ARGUED: Oct 29, 1957
DECIDED: Dec 09, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – October 29, 1957 in Benanti v. United States

Earl Warren:

Number 231, Salvatore Benanti, versus United States of America.

Mr. Todaro.

George J. Todaro:

May — Mr. Chief Justice, may it please the Court.

I don’t want to transgress on the previous case but I had an idea with regard to these so-called beeps that are heard on the telephone.

The reason for it is to indicate to the other party to the telephone that there is —

Earl Warren:

Yes.

George J. Todaro:

— a tap going on —

Earl Warren:

Sure.

George J. Todaro:

— and that’s a very obvious reason therefore the person knows that there is a telephone message being tapped in an indirect manner.

Earl Warren:

Yes.

George J. Todaro:

I wanted to get down to this case.

In this case, the petitioner was convicted of violating the federal act in that he had in his possession, 11 cans of alcohol without proper stamps affixed thereto and in transporting those 11 cans of alcohol.

A part of this situation, if Your Honor please, is that the police of the State of New York, pursuant to the authority of the State of New York and the law of the State of New York, had tapped a bar known as the Reno Bar.

And on May the 10th, a message was intercepted wherein the petitioner informed someone else that 11 pieces was going that night.

The officers — the state officers thought that the 11 pieces meant 11 pieces of narcotics, and following that interception and that – that and having obtained that information, they followed the car and when they stopped the car and arrested the driver, instead of 11 pieces of narcotics, they found 11 cans of unpacked alcohol, thereupon — thereupon turned over to the federal authorities for prosecution.

Now, the heart of this question — this case is whether a federal statute that prohibits both interception and divulgence of a telephone message and which goes on to the — to prohibit the — the use of intercepted message thus it’s used in the federal court.

It seems to me that every case that I’ve read up to the present time even this last case, the Rathbun case.

They started with the principle that the state officer could not testify.

Otherwise then they — they wouldn’t have to go on to the next question as to whether it constituted an interception.

Earl Warren:

The state officer could not testify in the federal court.

George J. Todaro:

In the federal court, yes.

Earl Warren:

Is that so?

George J. Todaro:

That’s exactly the point of this you’re here, whether a state officer can testify in the federal court in violation of 605.

Earl Warren:

Yes.

George J. Todaro:

Now, in the court below, the court stated that — that despite the fact that the state officer was acting pursuant to the laws of the State of New York and pursuant to a warrant of the State of New York, as soon as he testified under the federal court, he was violating the federal law, 605.

Whether —

John M. Harlan:

Do you say that’s been held?

George J. Todaro:

I beg your pardon?

John M. Harlan:

Do you say that’s been held?

George J. Todaro:

By the lower court in this case, the Circuit Court — the Second Circuit.

John M. Harlan:

I thought the Second Circuit said that it’s — it’s alright.

George J. Todaro:

That it was alright to testify.

John M. Harlan:

Yes.

Oh, I thought —

George J. Todaro:

It was alright —

John M. Harlan:

It was alright —

George J. Todaro:

— to testify but he said that as soon as the officer testified, he violated the federal —

John M. Harlan:

I see.

George J. Todaro:

— statute.

Now, we get down to the question as to whether a state officer may testify in a federal court.

We know, Your Honors, all know that the Nardone case, the first Nardone case and the second Nardone case have answered this question very clearly.

In the first Nardone case, the Court — this Court stated, the plain words of 605 forbid anyone unless authorized by the sender to intercept the telephone message and direct in equally clear language that no person shall divulge the message to any person, to recite the contents of the message in testimony before the court, is to divulge the message.

The Act forbids that, such testimony.

It thus does becomes a — a play with words if we say that the Nardone represents the laws of the State of New York — the United States as enunciated by this Court that by reason of the fact that this particular tap was made by state officer and the testimony is being made by a state officer that it puts it out of the protection of 605.

And in your point here that the — that Act should make no distinction between state officers and federal officers or anybody else.

George J. Todaro:

The statute —

(Inaudible)

George J. Todaro:

— is so crystal clear, Your Honor that it can’t possibly make — make any distinction.

The statute says no person, not being authorized by the sender shall intercept and divulge a communication to any person.

Now, no person, to my mind, is zero and you can’t make anything out of zero but zero.

John M. Harlan:

Well, assuming — assuming that a state officer could not divulge the communication itself in a federal court, does it necessarily follow that he also can’t divulge the fruits of the communication.

George J. Todaro:

That’s correct.

He cannot.

That’s the second Nardone case.

John M. Harlan:

Well, that’s what you got here isn’t it?

You’ve got fruits involved here and not the conversation itself.

George J. Todaro:

Oh, no, Your Honor.

If I may —

John M. Harlan:

(Inaudible)

George J. Todaro:

— if I may — the Government in its –-

John M. Harlan:

I thought you had the fruits and not the conversation.

George J. Todaro:

Oh, we have not only the fruit we have the whole tree and the conversation.

John M. Harlan:

You got it?

George J. Todaro:

This is the facts as stated by the Government.

There is no dispute as to the fact, the facts are fully recited in the opinion of the lower court, that is, the Second Circuit Court.

The Government in its brief here, in the recitation of the fact states as follows.

“The New York City Police, believing the petitioner and his brother were violating state law by dealing in narcotics, obtained a warrant to tap the telephone of the Reno Bar in New York City, frequently used by the Benantis.

On May the 10th”, I’m reading from page 6 of the Government’s brief, if Your Honor please.

“On May 10th, 1956 the state police intercepted a message between petitioner and another person to the effect that 11 pieces was to be transported that night.

So there was an interception of a message which gave the police a clue that something was going to happen that night.

Acting on this information, the police stopped the car driven by the petitioner’s brother, Angelo Benanti.

They did not find any narcotics but did find eleven five-gallon cans of unpacked alcohol.

Federal authorities were notified and this prosecution followed and it may be of interest to this Court that the lower court, the Circuit Court made this — made this observation in — in its decision.

But it is equally clear that what, for the wiretap there would have been no basis for any prosecution whatsoever as the apprehension of Angelo and the seizure of the 11 pieces led to the discovery of appellant’s participation in the violation of the federal law for which he had been convicted and the sequence, of course, in effect is clear.

There is — this is an (Inaudible) there has been an interception and the fruit of the poisonous tree or the tree itself was brought into court in the form of 11 cans of alcohol.

John M. Harlan:

Well, the tree and the fruit, there was no testimony here, as I understand it, by the state officers as to what they heard over the wires, am I right?

George J. Todaro:

No, no, Your Honor.

If I may say – we — we went up on — on a very short statement of facts here because the U.S. Attorney and I agreed on this — on the fact.

There was a testimony by the district attorney of New York County who obtained the order from the New York Supreme Court to authorize the tap of this Reno Bar.

The district attorney testified for the conversations.

In fact, the Court wanted to caution me not to have it brought in because it involved the word narcotics.

You understand?

And the district attorney testified that there was a tap, that the conversation was that 11 pieces were going and that the car was followed and they said they found 11 cans of alcohol.

The record is not completely, but it’s conceded, it was was admitted in the –- in the lower court.

It was so agreed that the U.S. Attorney’s brief followed the same principle in the lower court and the lower court so found in its decision —

William J. Brennan, Jr.:

Who — who put the district attorney on the stand, the Government?

George J. Todaro:

The Government.

William J. Brennan, Jr.:

The Government did?

George J. Todaro:

Yes.

William J. Brennan, Jr.:

And the Government questions elicited to what you’ve now told us?

George J. Todaro:

Well the Government brought — it meant to justify the — the tap because they wanted to show that this tap was authorized —

William J. Brennan, Jr.:

For whatever the reason is —

George J. Todaro:

Yes.

William J. Brennan, Jr.:

— it was on the Government’s case —

George J. Todaro:

The Government’s part —

William J. Brennan, Jr.:

— as the result came in?

George J. Todaro:

That’s — that’s the Government’s part.

So though factually, there’s no disagreement.

There was no disagreement in the Circuit Court of Appeals and there’s no disagreement (Inaudible) in the case.

And the brief by the Government indicates that there is no dispute as to the facts.

Now, in answer to the Justice’s remark with regards to the fruit of the poisonous tree, the second Nardone case covers that.

Before I get to that, in the first Nardone case, we have the clue and the answer as to why Congress passed 605.

And this Court stated, the answer to the question is one of policy.

The Congress may have thought it less important that some offender should go on with the justice than that the officers should resort to the methods, inconsistent with ethical standing — standards and destructive of personal limit.

Now, that I think is the crux of the thinking beyond Congress and by this Court that it would be destructive of ethical standards.

Those are ethical standards that Congress adopted for the whole of the United States, not just a portion.

Now, in the second Nardone case, this Court stated, the essence of a provision forbidding the acquisition of evidence in a certain way is that — that merely the evidence shall not be used before the Court but that — that it shall not be used at all.

That it is no evidence, it cannot be admitted before the Court nor can it be used at all.

That is strong language by this Court and it’s sound language because it intended to do away with this — the evils of wiretapping and that it intended —

John M. Harlan:

As to federal —

George J. Todaro:

— to enforce the outcome.

John M. Harlan:

There were some federal officers in Nardone, too, were they not?

Not state officers.

George J. Todaro:

Yes, that’s correct.

That’s correct.

William J. Brennan, Jr.:

Well, Mr. Todaro, if state officers were guilty of illegal searches and seizures, stay away from this case for a minute.

George J. Todaro:

Yes.

William J. Brennan, Jr.:

Do they violate federal law?

George J. Todaro:

Yes, sir definitely.

William J. Brennan, Jr.:

And yet Weeks says that they may testify in a federal prosecution.

George J. Todaro:

And the answer to that, Your Honor is —

William J. Brennan, Jr.:

I was trying to ask you now try to distinguish —

George J. Todaro:

In the Weeks case, the violation — the violation involved there was a Fourth Amendment, unlawful search and seizure.

And the unlawful search and seizure being the Fourth Amendment, the first eight Amendments were prohibitions.

They were limitations rather.

They were imposed on the Federal Government as the price for ratification of the Constitution.

Those were limitation imposed on — upon the Federal —

William J. Brennan, Jr.:

But, apart from —

George J. Todaro:

Government.

William J. Brennan, Jr.:

— that, were the state officers who were guilty of those unlawful searches and seizures, do they violate federal law?

George J. Todaro:

No, because there is nothing in the Fourth Amendment that says that — that the evidence C shall not be used in Court, that’s only by judicial implication.

The Court made that rule.

In the Weeks case by judicial implication, the Court said if a federal officer makes an unlawful search and seizure it shall not be used in the federal court.

William J. Brennan, Jr.:

Well, the jury’s distinction here then, that the state officers in that instance are not guilty of violations of federal law were as innocent.

George J. Todaro:

They are.

William J. Brennan, Jr.:

The interception of the telephone call was a violation of federal law even though authorized under state procedure.

George J. Todaro:

That is correct sir and the lower court so held too.

Judge — Judge Medina said the sooner the officer testified despite the fact that he did it pursuant to the laws of the State of New York, as soon as he divulged, he violated the federal law.

And there’s no — no possible doubt as to that because the statute is so clear.

William J. Brennan, Jr.:

So, what’s the (Inaudible) then that the evidence is nevertheless admissible but the state — that the state officer should be prosecuted for violation?

George J. Todaro:

Oh, no.

The evidence is inadmissible in the federal court.

In a federal court, as soon as the officer testifies and divulges, he is committing a violation of 605 in the presence of the Court.

In other words —

William J. Brennan, Jr.:

But the testimony was taken here.

George J. Todaro:

Yes.

And — and I say Justice that as soon as the officer testified in — in the Court and divulged the conversation, he was violating Section 605 of the Communication Act.

William J. Brennan, Jr.:

And you say that’s what the Court of Appeals also had.

George J. Todaro:

Yes.

William J. Brennan, Jr.:

Why did the Court of Appeals allow the testimony in then?

George J. Todaro:

Because they distinguished it — I — I think that the — the mistake they made is they — that they likened it to unlawful search and seizure.

Now, unlawful search and seizure is not the same as 605.

605, is the statute’s specific, crystal clear and admits of no doubts while the Fourth Amendment merely said that no — no the — the home of the person shall be secured against unlawful search and seizure.

It doesn’t say that the evidence ceases as a result of an unlawful search and seizure.

William J. Brennan, Jr.:

I — I’ll come back to it again.

George J. Todaro:

It cannot be used.

William J. Brennan, Jr.:

Is the unlawful search and seizure by a state officer a violation of federal law or not, in your view.

George J. Todaro:

No.

William J. Brennan, Jr.:

It is not.

George J. Todaro:

No.

William J. Brennan, Jr.:

This intercept, you say, is —

George J. Todaro:

Yes.

William J. Brennan, Jr.:

— a violation of federal law.

George J. Todaro:

Yes.

William J. Brennan, Jr.:

And that’s the distinction you make between this case and Weeks, is that it?

George J. Todaro:

That’s correct.

Felix Frankfurter:

So, why do you make that distinction?

The Weeks case wasn’t this case.

George J. Todaro:

No.

Felix Frankfurter:

The Weeks case was the unlawful arrest and the unlawful search by a United States Marshal.

George J. Todaro:

That’s correct.

I’m referring to the —

Felix Frankfurter:

— the whole point of this case is —

George J. Todaro:

That’s correct.

I’m referring to —

Felix Frankfurter:

— was a there violation there?

George J. Todaro:

I’m referring to Wolf versus Colorado and Urban versus —

Felix Frankfurter:

You said —

George J. Todaro:

— California.

Felix Frankfurter:

— you told me a different problem.

George J. Todaro:

That’s correct.

Felix Frankfurter:

Weeks wasn’t a state officer.

George J. Todaro:

That was a federal officer.

Felix Frankfurter:

And — and the — the evidence which he procured illegally, if you please, sought to be introduced because the cases are all the other way —

George J. Todaro:

That’s correct, Your Honor.

Felix Frankfurter:

— as to the Weeks problem.

George J. Todaro:

That’s right.

Felix Frankfurter:

Whether the search and seizure is —

George J. Todaro:

But the Weeks case was federal law.

Felix Frankfurter:

— illegal — may – but rendered illegal by state law and not by federal law.

William J. Brennan, Jr.:

Am I wrong?

I thought Weeks involved both federal officers and state officers.

George J. Todaro:

No.

It involves —

William J. Brennan, Jr.:

Am I wrong in that?

George J. Todaro:

— the federal officers, sir.

Felix Frankfurter:

You see, I’ve just read what the crucial thing is.

The United States Marshal went in and searched the premises without a warrant.

George J. Todaro:

That’s correct.

Now –Because the later cases, evidently there are later cases mostly where the search is made without authority by a state officer and the state officers hand the stuff over to federal officers, there the Weeks doctrine doesn’t apply.

That’s the Lustig case.

Felix Frankfurter:

That’s what (Inaudible)

George J. Todaro:

As in the Stemmer case but this doesn’t apply to — to 605.

Felix Frankfurter:

I’m not saying it does.

I’m just trying to get —

George J. Todaro:

That’s correct.

Felix Frankfurter:

— Weeks off of that.

George J. Todaro:

That’s right and Irvine versus California.

Now, there are some question with regard to the case of Schwartz versus Texas and that is being urged as an example as to why this evidence was proper — properly admitted.

But there is a distinction in Schwartz versus Texas.

George J. Todaro:

In that case, the State of Texas prosecuted the petitioner Schwartz for a state crime of robbery.

The officer testified to a telephone conversation which was intercepted.

One of the confederates in that particular case made an arrangement to have a telephone call with Schwartz and the officer would listen in and made a recording of that conversation.

At the trial, the petitioner Schwartz objected to the introduction of evidence in the state court of that testimony because it violated 605.

The Court allowed in an evidence and the case ultimately came up to the United States Supreme Court where they affirmed the conviction.

Of course, I believe Mr. Justice Douglas dissented (Inaudible)

In that case, this Court held — held, we hold that 605 applies only to exclusion in federal court proceedings of evidence obtained and sought to be divulged in violation thereof.

It does not exclude such evidence in a state court proceeding since we do not believe that Congress intended to impose a rule of evidence under state courts, we do not decide whether they have the power to do so.

William O. Douglas:

What case are you reading from?

George J. Todaro:

Schwartz versus Texas, 344 U.S. 199.

The question can only arise in a federal court proceeding.

Therefore, the Schwartz case clearly indicated that had this officer attempted to testify in the federal court, he would not have been permitted to do so.

This question can only arise in a federal court proceeding.

I have five minutes and maybe I ought to retain the five minutes for rebuttal.

John M. Harlan:

I wish you’d help me out on one thing.

George J. Todaro:

Yes.

John M. Harlan:

I wish you’d point to me where I can find what you say that the communication itself was testified, too, in here as distinguished from the truth.

George J. Todaro:

Well, Your Honor —

John M. Harlan:

I can’t find it.

George J. Todaro:

I — you — you will not find that particularly in the record.

This was a short record —

John M. Harlan:

Well —

George J. Todaro:

But we stipulated on the facts.

John M. Harlan:

We’ve got to decide this case (Voice Overlap) —

George J. Todaro:

And if Your Honor wishes, I’ll get a further — I’ll get — I’ll obtain the other —

John M. Harlan:

Well, maybe there’s no dispute.

George J. Todaro:

There is no dispute.

John M. Harlan:

— (Voice Overlap) the Government on it.

George J. Todaro:

There’s no dispute because the Government —

John M. Harlan:

They just (Voice Overlap) they knew I — I had it — understood the case differently that the only thing that we were concerned with here was the fruits not the —

George J. Todaro:

If the —

John M. Harlan:

— conversation itself.

George J. Todaro:

If Your Honor will read page 6 of the Government’s brief, the first paragraph, page 6.

I think that’d answer your question perfectly.

John M. Harlan:

Page 6.

Thank you.

George J. Todaro:

The first paragraph of — of page 6.

The New York City Police.

John M. Harlan:

Well, I’m sorry it doesn’t answer.

To me all it says is what happened, it doesn’t say that they testified to this at the trial.

The reason I press you on this is because the — your argument turns on the divulging aspect of this interception of communication.

George J. Todaro:

It turns on both grounds.

It really would make no difference because even if there wasn’t a divulgence, the very fact that there was attack made and evidence obtained in violation of 605, then it has the same effect under the second Nardone case it would apply.

But here there was a conversation —

John M. Harlan:

Second Nardone case, I suggest again involves federal officers and not state officers.

George J. Todaro:

But this involves a federal —

John M. Harlan:

I’m not saying that you’re wrong but I’m —

George J. Todaro:

This involves a federal court —

John M. Harlan:

— (Voice Overlap)

George J. Todaro:

— with a federal prohibition, a very explicit federal prohibition, 605 which there’s no question, shall intercept their communication or divulge its content.

Now, on this — as far as the facts are concerned, Your Honor, this is very clear.

The — the — the Government says on May the 10th, 1956, the state police intercepted a message between the petitioner and another person to the effect that 11 pieces were to be transported that night, intercepted a communication, a message.

That’s very plain to me that they intercepted a conversation.

Felix Frankfurter:

Yes but in there, I — I’m not sure your court accepts this colloquy question.

George J. Todaro:

Perhaps not.

Felix Frankfurter:

He doesn’t deny that they intercepted.

But he wants to know from you and I intervene because I’d like to know, too.

At the trial, were the words which came over the wire those words themselves, they introduced.

George J. Todaro:

11 pieces would go.

Yes, Your Honor.

Felix Frankfurter:

Well maybe that page 6 of the Government’s brief would indicate to the contrary.

George J. Todaro:

But —

Felix Frankfurter:

Because it goes on to say the fact that —

George J. Todaro:

If Your Honor please —

Felix Frankfurter:

— the search came as a result of a telephone interception.

It doesn’t indicate that the interception of Mr. Davis will — if he says he agrees with it (Voice Overlap) —

George J. Todaro:

Well, may I point out Your Honor that in the opinion of the court below, the Circuit Court, the Court stated but if it’s equally clear that, but for the wiretap there would have been no basis for any prosecution whatsoever.

Felix Frankfurter:

That nearly proves that — that doesn’t disapprove that, what they got, that the consequence of the interception.

George J. Todaro:

Well —

Felix Frankfurter:

— gave them a lead and the lead gave them evidence in his conviction.

George J. Todaro:

Now, if Your Honor wishes a further record on that, I’ll be glad to supply it —

Felix Frankfurter:

Oh, yes.

George J. Todaro:

— but I think that —

Felix Frankfurter:

(Inaudible)

George J. Todaro:

— it’s conceded that — that was so — that was so.

Earl Warren:

You may reserve the rest of your time if you wish to.

George J. Todaro:

Thank you.

Earl Warren:

Mr. Davis, would you address yourself first to that — that particular question?

Did they testify at the trial to what the conversation was?

John F . Davis:

Mr. Chief Justice, if the Court please.

On direct examination, the police officers were called to testify with respect to possession and transportation of the alcohol.

They were called by the U.S. Attorney on the direct case.

When the Government got through with the direct examination of the first police officer of the call, Mr. Todaro on cross-examination, may I say that there is no printed record in this case as it came up, you’ll recollect the Court granted certiorari and it came up in this brief quickly so there is a transcript — this is what I’m reading from here at the appendix in the Court of Appeals for the Second Circuit, which is a copy of the transcript which is on file with the clerk, although it has not been printed because of no — no opportunity to do so.

Then, Mr. Todaro, on cross-examination said, “Officer, you were in the vicinity of this Reno Bar quite frequently?”

“Yes, sir.”

“Did the Police Department have a tap on the Reno Bar, if you know?”

And the police officers, “Yes, they have several taps on the Reno Bar.”

Then Mr. Todaro, on — as a basis for objecting to the testimony and raising his objection brought out this information with respect to the tap and there is no question that when the next officer came up there was also the discussion with respect for the tap.

This, however, was not a part of the Government’s case.

It didn’t help to prove the Government’s case anything that was in the — in the conversation.

John F . Davis:

It was brought out as a objection as the basis for an objection to receiving the evidence in that — the information in evidence.

John M. Harlan:

Yes, but apart from that, was the subject matter of the conversation testified?

Did it come out or as to it’s ever intent — did it come out of the trial or just a mere fact that there was a tap.

John F . Davis:

Well, there was a — the language —

John M. Harlan:

Yes.

John F . Davis:

— about the 11 pieces was disclosed.

Now, I think it was disclosed for the judge rather than for the jury in determining whether or not this evidence could be — could be accepted.

Let me see if I can find the 11 pieces.

I don’t think it’s in this — in this appendix.

I think that was in the discussion with the — with the Court as to the admissibility of the evidence as to — by the police officers which was purported to be obtained from the lead of the — of the interception.

John M. Harlan:

Well, what I am — I don’t know why I have so much trouble about this.

I must be stupid but as the case was submitted to the jury, was the jury — did the jury have before it, testimony, as to what had been said in this tapped telephone —

John F . Davis:

No, Your Honor.

John M. Harlan:

— conversation.

It did not.

John F . Davis:

No.(Voice Overlap) —

John M. Harlan:

Well, that’s all I want to know.

Therefore, our concern with here is the evidence as to the fruits of that conversation —

John F . Davis:

That is right.

John M. Harlan:

— and that is all, is that right?

John F . Davis:

That’s right, Your Honor.

Hugo L. Black:

Why would that be true Mr. Davis if the evidence was or the statement was made on the evidence on the basis of the intercepted message and then prove what was in it and why was that (Voice Overlap) —

John F . Davis:

If that had been — if that had been the case it would have — then you would have a disclosure but the Government’s case wasn’t disclosure of the messages.

Hugo L. Black:

I understood you to say that the judge, in passing on the admissibility of evidence as presented to us, the telephone with so-called intercepted the messages.

Is it not?

John F . Davis:

Well, that’s right.

This — this language the — the 11 pieces, they — they said this — this information comes from a tap and the judge said let’s see what the tap was and he went —

Hugo L. Black:

So, why — why would the judge not be barred just as much as though it had been presented to the jury?

Why — why is it if any — if it’s wrong to present it as evidence to the jury to pass on the guilt from innocent —

John F . Davis:

Well —

Hugo L. Black:

— why wouldn’t all —

John F . Davis:

If it — if it —

Hugo L. Black:

— be wrong, to present it to the judge (Voice Overlap) —

John F . Davis:

If it is wrong —

Hugo L. Black:

(Voice Overlap)

John F . Davis:

— if it is not wrong, Your Honor, Mr. Benanti can’t object.

Mr. Benanti was pressing for the judge — was pressing for the judge the fact that the Government’s evidence should be excluded and the basis that he was saying it was — should be excluded, was because there has been a telephone tap when he on cross-examination brought out there’d been a tap and then he brought this information to the judge as a basis for the exclusion of the Government’s case.

He cannot object now that — that there was a — an unlawful disclosure.

He was attempting – attempting to — too —

Hugo L. Black:

He’s attempting to deprive the Government of the benefits of what he called an unlawful disclosure.

And the only way he could judge was to show then he had that message on there.

John F . Davis:

That — that is right.

That’s the only way that he could do it.

And that’s what he attempted to do.

But now, the Government can’t be taxed with the disclosure because the Government didn’t want — didn’t have anything to do with — actually, in this case, Your Honor the Government did not even know there had been an — a — a interception of these messages when it made the case.

It was until cross-examination and the defendant brought it out as part of its defense, as part of its objection to the interference — to the acceptance to this evidence that the United States Attorney knew that there’d been an interception.

Hugo L. Black:

So, your position then is different to what it would have been if the Government offered it as to the admissibility of evidence.

John F . Davis:

Well, if that would have certainly been a different case, yes.

Then you would have had a question of whether there, there would have been a disclosure if you please.

The Government would have been — I don’t say that would have answered the question but it has been an entirely different question because then if disclosure in the court is a violation of 605, the United States would have been involved in — in that — in that violation.

Felix Frankfurter:

But Mr. Davis, I don’t see how that helps you much because the second Nardone case says that the — the fruit is just as excludable as the —

John F . Davis:

Well —

Felix Frankfurter:

— intercept.

John F . Davis:

— yes.

Except that the second Nardone case does not say because the — the 605 does not say that there is a disclosure.

There is a divulgence when fruit, which is quite different from the message when the fruit is used in evidence.

It would be —

Felix Frankfurter:

I don’t follow you —

John F . Davis:

— the (Voice Overlap) —

Felix Frankfurter:

— at all.

Felix Frankfurter:

I don’t follow you at all.

John F . Davis:

Well —

Felix Frankfurter:

(Inaudible) too said you can’t use the product of a prohibited 605 transaction.

John F . Davis:

That is right.

Felix Frankfurter:

Isn’t that it?

John F . Davis:

That is right.

Felix Frankfurter:

So the question that bothers Justice Harlan so much isn’t decisive of this case or even very important to this case.

John F . Davis:

Well, we do — well it’s the —

Felix Frankfurter:

You must first establish that there was a violation of 605.

John F . Davis:

I think — I think Mr. Todaro said that there would be a violation of 605 in this Court by the divulgence in this Court of this fruit.

And I say whether or not it was admissible, it was not a violation — nothing that the Government was presenting as evidence was a violation of 605.

Maybe, if you apply the rule of the second Nardone case, this should have been excluded as the fruit of an illegal divulgence – an illegal wire-tapping.

Felix Frankfurter:

All right.

John F . Davis:

But that doesn’t mean that what is happening in court is itself a violation of 605.

Felix Frankfurter:

No, but I say that’s immaterial to the essential question in this case.

John F . Davis:

It — well, I’m not sure that — well, I’m — I’m not sure it’s immaterial but it certainly is —

Felix Frankfurter:

What I mean if you —

John F . Davis:

Yes.

Felix Frankfurter:

— if — if —

John F . Davis:

We still have –-

Felix Frankfurter:

(Voice Overlap)

John F . Davis:

— we still have a case to decide.

Felix Frankfurter:

If 605 was violated in this case then this evidence is inadmissible under Nardone and you don’t prove that — that 605 was violated by the inadmissibility of the — of the fruit.

John F . Davis:

That is right.

Felix Frankfurter:

All right.

William J. Brennan, Jr.:

Mr. Davis —

John F . Davis:

Now —

William J. Brennan, Jr.:

— you do rely on Weeks, don’t you?

John F . Davis:

Well, I — I wanted to mention Weeks because there’s been some confusion — almost all of Weeks deals with federal officials with the Court.

William J. Brennan, Jr.:

Yes, but it also deals with state officials.

John F . Davis:

The last paragraph, the next to the last, except for the result, deals with a seizure by policemen by —

William J. Brennan, Jr.:

Yes.

John F . Davis:

— local policeman and Weeks itself, is the origin of the rule that seizures by state police would — state officials without the knowledge or concurrence of the federal officials may be introduced in evidence.

William J. Brennan, Jr.:

Now, do you recognize the distinction between the Weeks problem that it concerned the state officers and the problem we have here?

John F . Davis:

Well, there is a difference because the Weeks case deals, of course, with the — with the Fourth Amendment.

And the question is whether the same rule shall be applied to the refusal to accept evidence because of a violation of 605.

William J. Brennan, Jr.:

And your position is there’s no —

John F . Davis:

Yes.

William J. Brennan, Jr.:

— difference in results they rely on Week’s court.

John F . Davis:

We do rely on Weeks.

We say that in the — in the wire-tapping cases in general, the analogy has been drawn in — in more than one case between the — the Fourth Amendment situation, unlawful searches and seizures and wire-tapping.

And that logically, the analogy should be followed through with respect to the interception by the state officer.

Felix Frankfurter:

Can’t we get Weeks straight?

Both of you rely on Weeks.

I intervened in when your Brother was on his feet that Weeks that when we say Weeks, we mean the doctrine that the illegal obtaining of evidence by a federal official excludes that evidence for use in the federal court.

That the Weeks also — and we mean that — that as against that — the fact that state officials not collaborating or being the catch for or acting under federal authority obtain illegal evidence.

It does not exclude the evidence.

That’s — that’s Weeks and the cases that follow.

John F . Davis:

That’s right.

Felix Frankfurter:

So, I couldn’t possibly understand why your opponent relied on Weeks and why is the — when you say Weeks you would mean the cases that follow, namely, Weeks — the Weeks doctrine is a week of exclusion by misconduct on the part of federal officials.

John F . Davis:

That is right and it draws the distinction with respect to state (Voice Overlap) —

Felix Frankfurter:

And all the rest follows Weiss and all the rest.

John F . Davis:

And that is — that is right.

And, of course, the basis — the basis of Weeks, as I think the basis here, could be that as justice — as a court rule of — in order to — in order to — to keep the — the Court free from — from encouraging illegal searches and seizures, we said we won’t let you use them in our court because that would not — that would encourage the — the officers to — to make illegal searches and seizures.

If you — if you slap their wrist on one hand and then use their evidence, why, you’re not really preventing them from doing it.

William J. Brennan, Jr.:

And that was said as to federal officers.

John F . Davis:

That’s been said as to federal officers.

William J. Brennan, Jr.:

But there the state officers, Weeks sanctioned the use of the material seized by state officers.

John F . Davis:

That’s right.

And the reason is — the reason is that you do not discourage the state officers from carrying on their state activities for state purposes, if you exclude it from — from federal — federal courts.

William J. Brennan, Jr.:

And do you concede that what the state officers did in the Weeks situation was not a violation of federal law in any respect?

John F . Davis:

Oh, no.

It was — it was dealt with as — as being illegal and —

William J. Brennan, Jr.:

And the violation of federal —

John F . Davis:

And the violation of — of — as an illegal search and seizure.

Now, of course, the Fourth Amendment doesn’t specifically apply that to federal officials.

So, it doesn’t —

Felix Frankfurter:

Was it dealt with?

I don’t see why we have so much trouble.

The Court said that – it has said that whatever the illegality now, they weren’t acting under federal authority.

John F . Davis:

But — what — yes, that is right.

And they said —

Felix Frankfurter:

And — but a state officer who — who breaks in a house, is he violating the Fourth Amendment?

John F . Davis:

No, he’s not —

Felix Frankfurter:

Certainly not.

John F . Davis:

No.

Harold Burton:

So, when you get through with the Weeks case and it gets back to this case, what do you say to the facts of this case, will present or prohibit all divulgence and doesn’t say anything about (Inaudible)

John F . Davis:

Well, I will come to that in a minute, Mr. Justice Burton.

But I’m assuming for a minute that it does apply to state officers.

I’m assuming that 605, does apply to the state — to –to the New York State Police but Section 605 does not deal — Congress didn’t deal with the introduction of the — of the information in evidence.

They said it shall be a crime.

And the question is should it be received in evidence even assuming that it was illegally obtained?

Harold Burton:

Right.

John F . Davis:

And if we follow Weeks, then we say that since these are state officials that are involved in — and that they were engaged only in local state enforcements that it can be used in a federal — in a federal court even assuming it was illegally —

Harold Burton:

And that’s the view —

John F . Davis:

— taken.

Harold Burton:

— or the statute view that you don’t have in the Weeks case.

John F . Davis:

That is right.

We have a statute but in the Weeks case, the question wasn’t the legality or illegality of that seizure.

It was a question of whether or not it was an appropriate thing to present it being introduced in evidence.

John F . Davis:

Then they felt that it was not appropriate to exclude it from evidence when only a state official was involved.

Harold Burton:

And they say the same thing here is what I’m telling you.

John F . Davis:

That’s right.

I would say even assuming and I will come to a minute — in a minute to the question whether it was illegal but I will say even assuming that the interception was in violation of 605 nevertheless, it can be received in evidence because on an analogy to the Weeks case, no federal official was — was involved and no — no public policy is –is furthered by excluding it.

Tom C. Clark:

Well, if the public policy involved of the federal court shall not lend themselves to aiding and abetting in a commission of a crime which is on your hypothesis involved under the statute.

John F . Davis:

Well, that it’s not a — those — if — if we did have a divulgence so that there was a crime being involved.

Tom C. Clark:

Yes, but your — your premise as I understood it was in answer to Justice Burton that you were assuming that there was a violation as to —

John F . Davis:

That is right.

Tom C. Clark:

–the statute.

John F . Davis:

That is right.

Tom C. Clark:

If there is a violation of the —

John F . Davis:

A past violation, that is right.

Tom C. Clark:

Well, it’s a violation of the statute in (a) the interception in your assumption and (b) in the divulgence.

John F . Davis:

— which has taken place in the past.

Tom C. Clark:

No, which is taking place in the court room.

John F . Davis:

Well, I think that would be a different case, Your Honor if there were a divulgence —

Tom C. Clark:

That’s why I was pressing you so hard as to whether the communication was divulged.

John F . Davis:

That’s — that’s right.

And I — I understand that — that point and I say it would be a different question if the divulgence did appear in the court room because there you would have the court sanction — sanctioning a violation — a current violation of — of 605 —

John M. Harlan:

Is that what you’re saying, in effect, is that you can assume, (a) that there was a violation of the statute through — by interception, (b) a divulgence, there would have been a violation if there had been divulgence of the intercepted communication —

John F . Davis:

That’s right.

John M. Harlan:

— but it does not follow that where there is no divulgence as embraced in the statute to wit, not only the fruits you used, it doesn’t follow that — that there should be an inclusion.

John F . Davis:

That is right.

And then — and then I think follows from Weeks and —

John M. Harlan:

I’m not so sure about it.

John F . Davis:

— and Lustig —

John M. Harlan:

That’s the point of it (Voice Overlap) —

John F . Davis:

— and the other cases which follow which say that this rule of exclusion shouldn’t be applied when the federal officials are not involved.

And when —

Felix Frankfurter:

There was a clearly —

John F . Davis:

— it’s not so much whether they’re state or federal officials really.

It’s a question of whether or not they were going — they were involved in federal law enforcement at the time.

One doesn’t prevent people from continuing to do the — their local law enforcement by excluding the information.

All they’re doing is — is penalizing themselves in a particular case if they exclude it.

It doesn’t accomplish anything.

It doesn’t prevent the state local — the local officials from continuing this activity.

Felix Frankfurter:

But, Mr. Davis, was there any doubt there was a divulgence here?

John F . Davis:

There wasn’t any divulgence the —

Felix Frankfurter:

I’m not talking about the in-trial.

Was there any doubt that what they got from the — what they heard they divulged.

John F . Davis:

Yes.

But there’s no indication that they divulged it.

Felix Frankfurter:

But they — but they must have in order for the — the truths could have been gathered from it.

John F . Davis:

The — the (Voice Overlap) —

Felix Frankfurter:

— told

John F . Davis:

The —

Felix Frankfurter:

— in order to be tipped off.

John F . Davis:

The individual officers who — who listened under the state — under the state order went out and — and stopped the trial and arrested the people.

I’m not — I don’t know until Mr. Mr. Todaro asked the questions as to what happened in order to (Voice Overlap) —

Felix Frankfurter:

I’m not talking about the trial.

John F . Davis:

But I’m not sure they divulged it at any time.

They went — they — they heard that the — that the car was going to be moving with 11 pieces and they went out and arrested the man.

The very — the man that listened.

Felix Frankfurter:

And then they handed it over to federal officials.

John F . Davis:

They handed the alcohol — the —

Felix Frankfurter:

Yes.

John F . Davis:

— the — the case over to —

Felix Frankfurter:

And they —

John F . Davis:

Not the — not the interception which is —

Felix Frankfurter:

No, no.

Felix Frankfurter:

And — but — but you think that we can discuss this case on the assumption they just adhere we found it and then left the room.

John F . Davis:

We found this man carrying alcohol.

Felix Frankfurter:

Yes.

John F . Davis:

Well, that’s the – that’s the — as far as we know, the federal officials had no idea that there was a wiretap.

There’s no —

Earl Warren:

Mr. Davis.

John F . Davis:

— reason why they should have known it.

Earl Warren:

Mr. Davis, was there a pretrial motion for suppression of the evidence?

John F . Davis:

No, no there was none.

Earl Warren:

There was none.

Only — only an objection when — when the evidence was offered.

John F . Davis:

That is right.

Felix Frankfurter:

Well if (Voice Overlap) —

John F . Davis:

And in that I’m not sure that there could have been because I don’t know that — that the — the counsel who was called in late had any information as to what the case was going to be and tell them there’s a trial until he heard it.

I’m not — I think that this might be a situation where the object — objection had to be made at the trial.

Felix Frankfurter:

Well, if it’s — if what you’ve said is so, there was no divulgence here and all you’ve got is handing over to the federal agency, stuff which the state officials got.

John F . Davis:

Yes, that’s right.

William J. Brennan, Jr.:

That’s your case.

John F . Davis:

That — that is — that is this case.

Felix Frankfurter:

And what —

John F . Davis:

But —

Felix Frankfurter:

— and why all of these problems about Weeks never helped them to decide, if that’s all there’s to it.

John F . Davis:

Because the claim of the petitioner here is that the lead — the lead which led — which resulted from the arrest came from wiretapping.

Felix Frankfurter:

But — but if there was no divulgence, there was no violation of the 605.

John F . Davis:

That — I think the exception is might well be.

Felix Frankfurter:

What do you mean “might well be” if divulgence has to be a necessary part and the record is barren of divulgence, you cannot just say “there might be” —

John F . Davis:

That —

Felix Frankfurter:

— without any complying, opening the door to say “there was a divulgence.”

John F . Davis:

Well —

Felix Frankfurter:

If there was no divulgence, assume that.

John F . Davis:

That’s right.

Felix Frankfurter:

Could there possibly be a violation of 605?

John F . Davis:

No, there couldn’t.

There has to be —

Felix Frankfurter:

Well, there couldn’t.

John F . Davis:

There has to be an interception —

Felix Frankfurter:

— they couldn’t (Voice Overlap)

John F . Davis:

— divulgence.

John M. Harlan:

Was this Nardone, too, involved a divulgence of the conversation?

John F . Davis:

Nardone two, I don’t —

John M. Harlan:

Well the fruits, isn’t it?

Felix Frankfurter:

Yes but that (Voice Overlap) —

John F . Davis:

Except —

Felix Frankfurter:

(Inaudible) interception was already in the first.

John F . Davis:

There was no discussion in Nardone two of — of divulgence.

There can be no question that many people knew of the contents of these intercepted telephone messages in Nardone.

I mean —

Felix Frankfurter:

But — but Nardone two is built on Nardone one, this is all the prior trial.

John F . Davis:

That is right.

I’d like to move, if I may, to the question of whether or not there was a violation of 605 because if there was no violation, then we’ve — we have none of these problems.

The New York statute is specific that — it’s — it’s found in its Constitution and its Code of Criminal Procedure and it specifically provides for the issuance of a warrant by a court on application under oath showing probable cause of the necessity of intercepting telephone message.

The length of time which the warrant can be used is — is limited by statute.

It was under this particular application, under this particular law that this New York City police made this interception.

They did apply to the New York Court.

They got a warrant.

They listened pursuant to the warrant.

So, this case raises, very squarely, the question of whether or not that New York procedure is outlawed by Section 605 of the — of the Communications Act.

Now, it’s also clear that Section 605, in language, covers everyone.

If it’s to be read literally, it applies to the judge who issues the warrants and the policeman who — who listened to the call because it makes no exception for — for anybody.

But in dealing with a problem of balancing federal and state legislation, this intergovernmental problems, it is not infrequent to — for the Court to interpret what appeared to be blanket prohibitions so as to permit the States to apply their local policies.

John F . Davis:

Let me give you an example, an old example.

There’s been on the statute for many years a law which says that nobody shall interfere with the — the carriage of the mails.

Many years ago in Philadelphia, the local law officials found a man driving sleigh down Chestnut Street without any bells on the sleigh and proceeding in an unlawful rate of speed.

And the local law official arrested the mail carrier.

And the question came up before Justice Washington sitting on the Circuit, as to whether or not, the blanket prohibition against the interference with the mail covered the — this interference by the local law official.

And —

Earl Warren:

And this man, an employee or a contractor.

John F . Davis:

He was an employee —

Earl Warren:

Employee?

John F . Davis:

I mean he was a regular —

Earl Warren:

Regular employee —

John F . Davis:

— as far as it appears, he was a regular employee.

At least there’s nothing in the case that would indicate that there was any — anything different.

This case that I refer to was the United States against Hart and I quote on page 16 of our brief from Justice Washington’s construction of the Act to say that it would be unreasonable to apply the Act with this kind of a stoppage.

Now, that’s an old case.

There’s been more recent cases that — that apply the same thing.

One fairly recent case is the Penn Dairies case, Penn Dairies against Milk Control Commission in 318 United States where there was a blanket law that said that military installation should buy their — their supplies by competitive bidding.

It’s a blanket regulation.

The question of — which arose here was whether the Penn Dairies which was subject to a local law as to milk control, setting prices, whether they — whether the — the competitive bidding requirement apply.

John M. Harlan:

What do you do with Weiss against United States that holds this Act as I understand it applies to intrastate communications — telephone — intrastate —

John F . Davis:

Yes.

John M. Harlan:

— wiretap?

John F . Davis:

Well, that — I am not — my argument — all right so I got to accept it that I mean it — it is the law and — and it does not seem to me inconsistent with the position that I am taking.

In — it’s been possible to — to separate interstate and intrastate communications over an interstate system as the telephone system is.

And when there is wiretapping, it maybe interstate and it maybe intrastate and 605 applies to both, at least this Section, this clause of 605 applies to both.

But that does not mean that local state officials may not be exempted from the prohibition and I’m — I’m not even suggesting that they are limited to the interception of intrastate communications because when they listened under one of these warrants, they can’t tell whether it’s going to be intrastate or interstate that they are intercepting.

But what they are doing is, in — in pursuant to the New York State’s provisions for law enforcement and pursuant to a warrant of the Court, they are in New York and without preventing the — the system from operating, they are listening in on interstate or intrastate messages to this — to this bar.

This, we say, since it is pursuant to a local law enforcement policy, is not forbidden by 605 of the — of the Communications Act.

John M. Harlan:

That’s the Schwartz against Texas or Schwartz against United States cut into that argument (Voice Overlap) —

John F . Davis:

No, Schwartz against United States says that — no, it’s Schwartz against Texas.

John F . Davis:

Schwartz against Texas —

John M. Harlan:

What it says —

John F . Davis:

— the State of Texas may, in — in its courts — in its courts — in its (Inaudible) trials may use evidence which is obtained by federal officers.

John M. Harlan:

Violation of the Act.

John F . Davis:

In violation of 605 of the Act.

Well, but not under any specific authority of — of law, of Congress.

May I say this, that the Nardone case itself, the first Nardone case says that there is no — that it applies to law officials, as to others that the prohibition does, applies across the board to everybody.

But it was not there dealing with a case of any specific government authority to intercept, as we have in this case.

In Nardone, the — the officers were — were intercepting as part of their law enforcement but without any — they were federal officers and obviously there was no specific authority given to them to — to intercept.

So, we feel that — that the — the fact that this Legislature of New York and specifically dealt with this problem, considered that it is necessary to their local law enforcement, should lead this Court to consider very carefully, whether or not these two laws can be reconciled or whether they are irreconcilable.

If they are irreconcilable, of course, the Supremacy Clause of the Constitution must control and the — the Constitution and the law of — of New York must be held invalid.

But one doesn’t arrive at a conclusion like that if it is possible by construction to — to let both of them stand together.

In passing the Communications Act, Congress was very — was very insistent that the State’s interest in telephone communications should continue to be recognized that it felt this was a — this was — and utility in which they were both federal and state aspects and that the Federal Government – that the Congress was very careful not to preempt the entire field.

They said we want to save for the States certain amount of regulation and certain amount of — of local autonomy.

And it seems entirely consistent with — with that general policy, although they didn’t deal with this problem — specific problem before United States, specifically.

It seems only consistent with that if they would have intended that a local law permitting interception under court warrant would be — should be — should be legal.

Earl Warren:

Suppose Mr. Davis that instead of having a positive law such as New York had permitting officers to use these wiretaps say, they have the policy of permitting them to do it without having any law against wiretap, would the situation be the same here?

John F . Davis:

That would be much closer to the Nardone case itself.

It would be possible in a — in — in that case to — to draw a distinction when you have a state official doing it in accordance with the state policy.

But by and large, the first Nardone case says that law officials, like anybody else, would be subject to the Act.

And I think it’d be a very difficult case if you didn’t have the specific authority.

Earl Warren:

So then they couldn’t have if they couldn’t have a policy of letting them do it by a lack of legislation how the — how could they — how could they cure the situation by legislation giving them the affirmative right to do it —

John F . Davis:

It can only —

Earl Warren:

— if it’s in conflict with — if it’s in conflict with the federal law.

John F . Davis:

If it is in conflict with this federal law, they cannot do it.

It’s a question of interpreting —

Earl Warren:

Well —

John F . Davis:

— the federal law.

Earl Warren:

Well, I thought that — I — I understood you that it would — you thought it might be —

John F . Davis:

Well —

Earl Warren:

— in conflict with federal law if they have no statute in New York and they relied on — on the policy of letting — letting the police officers do it by way of not prohibiting it.

You thought that would be.

Now if — if that — if that doesn’t help them how will the statute help them?

John F . Davis:

Well, it would only help them if we would construe 605 to mean that Congress couldn’t have intended to prevent the States from dealing with a local problem of this kind through legislation.

I am urging that it is possible as in this other cases by implication to — just to — to find a — a authority to the States to legislate in this field.

Earl Warren:

Is there anything in — in the legislative history that would indicate that the Congress intended to prevent all federal officers from doing this and all citizens but intended to leave local law enforcement officers free to violate the law?

John F . Davis:

No.

There’s no — there’s no indication of any such intent on the part of Congress.

Felix Frankfurter:

Before you sit down Mr. Davis, I want to leave you a little uncertain of your hesitation — this hesitation which was in saying there could be a violation of the 605 if the record is barren of a fruit of divulgence granting there was an interception.

John F . Davis:

Well, I — I don’t hesitate because I have any question as to about what — about our position that there has to be both an interception and a divulgence.

Felix Frankfurter:

I don’t mean your position really that but — but 605.

John F . Davis:

Yes, 605, says that.

There must be —

Felix Frankfurter:

And what is the —

John F . Davis:

— interception and divulgence.

Felix Frankfurter:

And if the record is barren of — of an interception —

John F . Davis:

Of divulgence.

Felix Frankfurter:

Of divulgence.

I beg your pardon.

Where do we go from there?

John F . Davis:

I think there can be no violation but that I think that in — the reason that I — that I have difficulty with that case, this situation, is that — that some of the language of the Court in dealing with this problem, deals with wiretapping, as such, as being an underhanded bad business.

I think it comes from reading the — the dissents — the dissents in the — on — on the original Olmstead case.

And so one has a feeling that if there is this kind of — of interception in the case that we have a problem as to the — the reception of the evidence and the —

Felix Frankfurter:

Well, I should think if lower courts talk that way.

I don’t know anything about it there’s all the more reasons for getting clarity into the business?

John F . Davis:

Well, I —

Felix Frankfurter:

This is all the more reasons for your being more robust than you are in standing —

John F . Davis:

Well —

Felix Frankfurter:

— on that position.

John F . Davis:

Well I — well I can assure Your Honor that —

Felix Frankfurter:

No, I don’t want to put you —

John F . Davis:

No, I can assure Your Honor that there’s no — there is no hesitation on my part on that — on that issue.

Felix Frankfurter:

All right, I —

John F . Davis:

But it’s clearly our position that there must be both interception and divulgence before there’s a violation of 605.

There must be —

Felix Frankfurter:

— (Voice Overlap) 605 doesn’t say or doesn’t say anybody who intercepts (Inaudible) is — be guilty and can be civilly, sued, does it?

John F . Davis:

It does not.

Felix Frankfurter:

Well, we can’t go on the general atmosphere that interception is bad business.God knows nobody thinks worst of it than I do.

John F . Davis:

That’s right.

The statute requires both and — and so far — so far as I can ascertain, there’s no — nothing in this record with respect to divulgence.

Hugo L. Black:

May I ask you Mr. Davis since the statute does require a rule, what do you say about what Judge Medina said on page 4A of what he thinks where he said we have no alternative other than to hold by tapping the wire, interception in the communications made by a telephone and divulging at the trial what they had overheard, the New York police officer violates the federal statute.

John F . Davis:

That’s what Judge Medina said.

Hugo L. Black:

So, are you challenging it?

John F . Davis:

I find no evidence of any divulgence at the trial except as I had explained to the court as a basis for objecting to the introduction of the evidence.

Hugo L. Black:

Do you challenge that statement in your brief?

It is rather —

John F . Davis:

We —

Hugo L. Black:

— it’s rather unusual to the court to go against the — what the court says as to the facts of case —

John F . Davis:

Well, we —

Hugo L. Black:

(Voice Overlap)

John F . Davis:

— we have not — we have not Mr. Justice Black, we haven’t argued in our brief in this case and quite frankly until Mr. Justice Frankfurter pressed me on this one.

I hadn’t realized the importance of this to the — to the case.

We haven’t —

Hugo L. Black:

I thought it (Voice Overlap) —

John F . Davis:

— argued the absence of divulgence here.

Hugo L. Black:

I thought (Inaudible) might have been the reason why you have the statement there.

John F . Davis:

Well —

Hugo L. Black:

— there.

John F . Davis:

— I — one reason — one reason that — that this comes up and — and maybe without proper preparation is that we don’t have any proper record in this case because of the way this thing comes to this Court.

Hugo L. Black:

That being true, wouldn’t we have to accept

John F . Davis:

Well —

Hugo L. Black:

— what the court held?

John F . Davis:

Well, you — well we’d — you have before you the transcript of the proceeding below which — which will show you everything that was — I mean there’s no question as to what went on at the trial.

That transcript is on file with the Court.

So there’s no —

Hugo L. Black:

He found that there was both interception and divulgence.

John F . Davis:

Well, he makes that remark.

I don’t know whether his mind was —

Hugo L. Black:

— (Voice Overlap) at the Court’s opinion, isn’t it?

John F . Davis:

That’s certainly in the Court’s opinion whether it’s a conscious weighing of any evidence or whether it’s a — an assumption, I don’t know.

Earl Warren:

Well, Mr. Davis, if at the trial either it’s before the courts or before the jury, one of the officers testified to this conversation so far as 11 pieces are concerned.

How can it be said that there is no divulgence?

John F . Davis:

Well, I think that that would have been a divulgence of that information, yes.

Earl Warren:

Well, it was.

It was there and it was a divulgence, wasn’t it?

John F . Davis:

Yes, but I — but I don’t think —

Earl Warren:

Well then —

John F . Davis:

— that the petitioner — the petitioner can now object because on cross-examination in opposing the in — the admissibility of the evidence can object because he brought out a message of this kind.

Earl Warren:

Well, you brought the fruits of it — of it there and wasn’t he entitled in his conscience to (Voice Overlap) —

John F . Davis:

It’s certainly wasn’t entitled to.

That was the only way that he could challenge it and that’s the way he did challenge it.

But that doesn’t —

Earl Warren:

And indeed —

John F . Davis:

— mean that the Government —

Earl Warren:

— there was this divulgence then — then —

John F . Davis:

And this —

Earl Warren:

— if there was a divulgence, then Judge Medina is right, isn’t he?

John F . Davis:

Well, not a divulgence in the sense that should exclude the evidence from the — from the — should result in an — sa violation.

Earl Warren:

Well, does the — does the statute say that it shall not be divulged to a jury?

It says it shall not be divulged.

John F . Davis:

Well, if there was a violation by the police officer in — in answering this question in court, if there was such a violation, it is not attributable to the Government.

It’s attributable to the petitioner and the petitioner cannot then object to be introduced and introduction of some other evidence on the ground that he caused the divulgence.

Earl Warren:

Well, when you — when you bring a — a witness into the case and — and produce evidence that amounts to the introduction of — of poisoned evidence, can you hide behind — behind that —

John F . Davis:

No.

Earl Warren:

— and say that —

John F . Davis:

I’m not trying to —

Earl Warren:

— we don’t — we — we’re not responsible for any divulgence because the — the defendant tried to show and did show that it was illegally obtained?

John F . Davis:

We’re not trying to hide behind it, Your Honor.

We think we had an entire right to challenge this evidence and to bring out this — and to bring this out before the Court.

I mean he had to say —

Felix Frankfurter:

— (Voice Overlap)

John F . Davis:

— in order to challenge it he couldn’t do anything else.

Felix Frankfurter:

Suppose a police officer had said or asked the court’s ruling not to — to be allowed not to answer this question because to answer it would commit a crime.

John F . Davis:

I — I think [Laughs] it would — it would be an impossible situation.

I mean there’d be no way — that would mean there would be no way of challenging — challenging the admissibility of this evidence.

If you couldn’t talk — maybe you didn’t have to tell the details of the conversation.

Maybe all they had to do was to say there was wiretapping.

Maybe that would have been —

Felix Frankfurter:

I don’t see — I don’t — myself —

John F . Davis:

And that wouldn’t be a divulgence with — of the message.

Felix Frankfurter:

I don’t see how the — how it was necessary to tell that there’s interception in order to tell that this was evidence.

John F . Davis:

Well, they wanted to find out whether this resulted from the interception.

And in order to find out whether this seizure resulted from the interception, they have to find out what was said in the interception and that’s why these questions were asked.

And whether it was proper or whether it wasn’t, I don’t know.

Felix Frankfurter:

What I’m suggesting —

John F . Davis:

But —

Felix Frankfurter:

— and I (Inaudible) the policeman might say I’m — I’m familiar with the law and I’m — my — my lips are sealed because that would make a crime which heretofore wasn’t a crime because there’s been no divulgence.

John F . Davis:

And then we would come down to the question of who has the burden of proof showing that there is a connection between the evidence and the — and the alleged interception whether it is the objector or whether it’s the — the Government.

John M. Harlan:

I don’t see how you get around what Justice Black pointed out.

The record (Inaudible)

John M. Harlan:

Here we got the Court of Appeals saying it was divulged, what difference does it make and he was in — it was divulged it was divulged.

You’re trying to use the —

John F . Davis:

But — but I’m not trying to use anything that was divulged, Your — Your Honor.

John M. Harlan:

Well, the fruits.

That’s the difference —

John F . Davis:

But I’m not — yes.

What [Laughs] — what I’m trying to — what we’re trying to use is the evidence which occurred before that and if there was divulgence, it was divulgence which the petitioner cannot obtain.

Hugo L. Black:

So, then you get down to a very narrow point.

If you — if you are — if you have to live with this record, this statement then it seems to me what you said before indicate that you cannot use the conversation itself even though by a state officer in this proceeding.

And then the only question is whether the fruits could be used —

John F . Davis:

That is —

Hugo L. Black:

I’d say that’s — that’s all there is.

But you’re — you’re bound by this (Inaudible)

John F . Davis:

Well —

Hugo L. Black:

Maybe it was our fault deciding the case, too.

John F . Davis:

Well, I’m not —

Hugo L. Black:

(Inaudible)

John F . Davis:

— sure.

I — I think we’re bound by — by the transcript which is before you —

Hugo L. Black:

But the thing is —

John F . Davis:

— of — of what actually occurred.

I mean —

Hugo L. Black:

And this is a finding by the Court of Appeals.

How can we overlook that?

John F . Davis:

Well, if it —

Felix Frankfurter:

Look at the record and see if it’s going out.

John F . Davis:

If there’s no — if there’s no word in —

Felix Frankfurter:

— (Voice Overlap)

John F . Davis:

— the record —

Felix Frankfurter:

I don’t see that we’re borne by what an opinion (Voice Overlap) —

John F . Davis:

If there’s no word in the record (Voice Overlap) —

Felix Frankfurter:

— (Voice Overlap) state the fact’s inaccurate.

John F . Davis:

Actually, you see — actually, Your Honor, there was no — there was no consideration in our brief and of — so far as I know it until this argument as to whether or not there had been a prior divulgence in this case.

I mean we had assumed that there were two issues in this case, one, an illegal act by the state officials under 605 and whether still the evidence should be admissible or two, that the act was not illegal because it was — it was justified by the state — by the state constitutional laws.

This additional issue which has now arisen is something which is confused on — on the record in view of Judge Medina’s statement and can only be ascertained by reading the — the transcript itself.

Felix Frankfurter:

How big of a transcript is this, do you know?

John F . Davis:

It’s not long.

Felix Frankfurter:

It’s not long.

Hugo L. Black:

Is the record here?

Are there old records?

Felix Frankfurter:

Yes, it is here.

John F . Davis:

Is it found (Voice Overlap) —

John M. Harlan:

Now, I wonder —

John F . Davis:

— well in fact if the transcript itself found is the question.

George J. Todaro:

I think that there was the — the question of divulgence was admitted by the U.S. Attorney’s office when we went to the United States Court of Appeals.

Felix Frankfurter:

You mean it’s — his — his admission is in the record?

George J. Todaro:

I — I’ll supply a copy of his statement on appeal.

I mean to the U.S. Attorney’s Office where they concede that there was a divulgence.

Felix Frankfurter:

And they’re free to agree.

Is that where he — and therefore he — and therefore he conceded it?

When you say he conceded it on appeal —

George J. Todaro:

Yes.

Felix Frankfurter:

— in the brief filed in the Court of Appeals?

George J. Todaro:

I believe so.

Felix Frankfurter:

Well, the Department of Justice has those briefs haven’t they Mr. Davis?

John F . Davis:

Yes, we have them.

George J. Todaro:

I’d agree, though.

Hugo L. Black:

If you —

John F . Davis:

I —

Hugo L. Black:

— see the entire record here, the evidence and everything that transpired at the trial for it.

John F . Davis:

Mr. Justice Black, I think that nothing has been certified when the petition — of course when the petition was filed in this case as is usual and now that the — just the — the opinion of the court below is — is made in the appendix to the — to the petitioner.

When it is granted by then generally a record is printed.

Of course, there was no time to print a record and I am not — I haven’t checked but I do not know whether there’s even a certified copy of the transcript.

Hugo L. Black:

What is —

John F . Davis:

What I have referred —

Hugo L. Black:

If it’s not a record we’d have to go about —

John F . Davis:

You’d have to accept it for the (Voice Overlap) —

Hugo L. Black:

— and if there is a record, we could look at the record.

John F . Davis:

That is right.

Felix Frankfurter:

Plus also what justify your friend — that —

John F . Davis:

Anything conceded —

Felix Frankfurter:

— it reads in the — in the Court of Appeals the concession by the U.S. Attorney office.

Earl Warren:

Mr. (Voice Overlap).

George J. Todaro:

Mr. Chief Justice.

I just want to point out that Section 605 also states as follows “or they use the same or information therein contained for his own benefit or for the benefit of another that entitled, thereto, making use of the information obtained if they have to use of the information following the — the bringing in the matter in the United States District Court for prosecution.

With regards to the record, I want to say that we didn’t print the record because under the Lustig case, I believe that the findings of the Court of Appeals are binding upon this Court.

Now, this 11 pieces going is not a figment of an imagination —

William J. Brennan, Jr.:

(Inaudible) — Mr. Todaro, I — I just obtained from the clerk what appears to be all there is of a record submitted and included in it is your appendix in the Court of Appeals which is a — in a brief presented but apparently with all of the testimony that those two, the wiretap and all the rest of it by the witnesses we’ll call it transit and so forth.

George J. Todaro:

You have it all before you?

William J. Brennan, Jr.:

It seems to be this is it.

Did that have all of that in it?

George J. Todaro:

(Inaudible) No.

William J. Brennan, Jr.:

It doesn’t have the whole trial record but it —

George J. Todaro:

No, no.

William J. Brennan, Jr.:

— seems to be —

George J. Todaro:

No, no.

That’s merely a certified copy of the record of the Circuit Court of Appeals.

That is — there’s certification with respect to the Court of Appeals.

William J. Brennan, Jr.:

And I think there’s all the testimony, the testimony of John A. Francis for the Government.

George J. Todaro:

Has it got testimony of Mr. Murphy you’re supposed —

William J. Brennan, Jr.:

That’s surnamed (Inaudible) for the Government side.

George J. Todaro:

With Mr. Murphy —

William J. Brennan, Jr.:

That’s all there are — just — (Voice Overlap) —

George J. Todaro:

That’s this Murphy, the district attorney of New York County testified to the actual divulgence and these 11 pieces was not — was not obtained as a figment of the imagination of anyone.

It was conceded by everyone.

The U.S. Attorney conceded.

The Circuit Court of Appeals knew that that was brought out at the trial.

And there was no question about it.

Even the Solicitor General in his brief refers to 11 pieces going — where do these 11 pieces go and come from?

It took part during the trial as an officer of the court would make a statement of this sort unless he knew that it happened.

Now, the — the — and the Circuit Court judge in his review of the facts, page 3A of the appendix says — states, “On May 10th, 1956 by listening in on a conversation over the telephone between appellant and some other person, the state police learned that 11 pieces will be transported that night at a certain time and place in New York City.”

Now, this is just Medina talking.

He’d learned that — he states that the police learned that 11 pieces were going.

Well, that must transpired the — that it’d taken place during the trial that somebody testified 11 pieces were going that — that night and that’s exactly why they followed the car.

They thought they’re going to get 11 pieces of narcotic instead they found 11 cans of alcohol.

Now, then there’s no dispute about that.

I don’t think there’s any serious dispute on the part of the Government that this conversation — that this tap didn’t take place, that this conversation wasn’t overheard and this wasn’t testified to in Court.

Hugo L. Black:

You mean that they’d testified to actually what they overheard.

George J. Todaro:

Correct.

Other — otherwise, how would Justice Medina say that on May 10th, 1956, by listening in on a conversation on the telephone between the appellant and some other person, the state police officer learned that 11 pieces would be transported that night at a certain time and place in New York City?

Having heard that conversation over a tapped telephone, they followed that car and then they were disappointed.

They only found 11 cans of alcohol and they couldn’t make an arrest for narcotics.

Now, as far as the record is concerned, if Your Honor wants to — I need to go by and get all the record and file a supplemental brief, all right.

But I don’t think it’s necessary because all along the line, the U.S. Attorney has conceded the tap, it has conceded the divulgence.

The only question is that I brought out the tap.

Sure enough, I might have brought it out when I questioned the police officers as to whether there was a tap on the telephone and that they got some information on the telephone.

And having got that information, they followed this car.

They overheard something and they followed the car.

But how else can I bring about — how else could I proceed under the second Nardone case it’s incumbent upon me to first — to establish that there was a tap.

Now, in this case, if Your Honors please, I have exactly 10 minutes preparation.

George J. Todaro:

There was another attorney involved.

There was a conflict of interest in the last minute, I was in the case and Judge Walsh wouldn’t consent to an adjournment and I borrowed a piece of paper from the U.S. Attorney to — to proceed with the trial.

I know nothing about the case.

So, when I got up to cross examine, I don’t know, something hit me maybe there was a wiretap and I asked the foolish question and just expected to get a big no, when I got a big yes.

And then I had something to — to play ball, start the cycle.

Now, with regard to the validity of the statute of New York —

Felix Frankfurter:

So, that explains — that explains the answer to the question of — the Chief Justice’s question.

There was no motion to suppress.

George J. Todaro:

What — oh yes.

There was a motion to suppress that during the trial though.

Felix Frankfurter:

Well, I don’t —

George J. Todaro:

Yes.

Felix Frankfurter:

but not (Voice Overlap) —

George J. Todaro:

Prior to that, no.

No, I — I — it was only equivalent to 10 minutes with that case.

Felix Frankfurter:

I understand that.

That explains that.

George J. Todaro:

Oh sure.

Otherwise, I would have made a motion —

Felix Frankfurter:

Yes.

George J. Todaro:

— to suppress it via divulgence, Mr. Chief Justice.

As to the question of the — the valid — the conflict between the state law and the United — in 605, we did not really raise that issue.

The Government raised it.

I presume because of Justice Medina’s ruling that the — as soon as the officer testified, he violated a federal act.

I’m inclined to agree with the court below because the two — two statutes are diametrically opposed to each other and both cannot survive.

One is destructive of the other because one says no person shall intercept, and it doesn’t mean except the office of the State of New York, while the other will say, we may intercept under certain condition.

Now, this is a law of general application.

If it — it involves the whole United States.

It does not exclude the State of New York from its — from abiding by it and the legislature of the State of New York cannot put Congress out of business by legislating in a different way.

It would seem to me that they’re — that they’re diametrically opposed and there’s a be conflict that must be resolved in favor of the Congress of the United States and the policy of the Congress of the United States.

George J. Todaro:

Now, may I add and close here that there have been repeated attempts made to outlaw wire — that is to amend 605 by permitting limited wiretapping by Congress.

And the omission being that despite the pressure from our — some of our governmental agencies, the Congress of United States has refused and still refuses to change 605.

Now, it would indicate that they have a good reason why they don’t want to change 605.

And on — if Congress wishes to change 605, and permit the legislature of the State of New York to have limited wiretapping, Congress can certainly do it by passing the proper act.

While 605 stands at — this now that no person shall intercept the communication, as I’ve said before, no person means zero and zero cannot be made into numerical numbers other than zero.

Thank you.