Berger v. New York

PETITIONER: Ralph Berger
LOCATION: Office of Harry Steinman


CITATION: 388 US 41 (1967)
ARGUED: Apr 13, 1967
DECIDED: Jun 12, 1967

H. Richard Uviller - for the respondent
Joseph E. Brill - for the petitioner

Facts of the case


Media for Berger v. New York

Audio Transcription for Oral Argument - April 13, 1967 in Berger v. New York

Earl Warren:

Number 615, Ralph Berger against the people for the State of New York.

Mr. Brill?

Joseph E. Brill:

Mr. Chief Justice, may it please the Court.

My client, Ralph Berger was convicted in a state prosecution for conspiracy to bribe the chairman of the New York State Liquor Authority.

His conviction was affirmed by the appellate courts in the State of New York and in each instance without opinion.

However, in the Court of Appeals, then Judge -- Chief Judge Desmond and Judge Fold, now Chief Judge Fold dissented in an opinion which appears at page 691 of the record here.

The questions before this Court as limited by the order allowing certiorari are found at page 3 of our brief.

They involve the constitutionality of the New York State permissive eavesdrop statute and on the assumption of constitutionality of such statute whether the ex parte orders for secret electronic bugging were made on adequate showing of probable cause.

Prior to the trial, a motion was made on behalf of petitioner to suppress evidence and leads thereto on the ground that the same were obtained in violation of his constitutional rights by trespassory electronic bugging of constitutionally protected areas.

That motion to suppress was denied, was lead to renew before the trial court.

At the outset of the trial, during the proceedings under the renewed motion to suppress, the parties entered into a stipulation under which it was agreed that without the evidence and the leads obtained from the electronic eavesdrop devices placed in certain private offices, there was no information to present to a grand jury or on the basis of which to prosecute the petitioner and that all of the evidence and all of the leads thereto were activities at those two locations.

The electronic bugs in those private offices were installed under authorizing officers -- orders, I beg your pardon, issued ex parte by a state judge pursuant to Section 813 (a) of the New York Code of Criminal Procedure.

Those orders made on April 10, 1962 and of June 16, 1962 for the separate premises involved, permitted the prosecutor, his agents, and police working under his direction, and I quote “to overhear and record by means of any instrument, any and all conversations, communications and discussions, that may take place between the persons present in the above mentioned room and to do all things necessary to permit said conversations, communications, and discussions to be overheard and recorded.”

The ex parte orders renewed the eavesdropping for 60 days and were thereafter renewed for additional similar periods.

Later in my discussion I shall advert to the -- in detail to the question as to whether they were submitted to the judge who made the orders, adequate proof to support a finding of probable cause as required by the Fourth Amendment of our federal constitution.

What are the total directions of the orders have been extended?

Joseph E. Brill:

Approximately four months Mr. Justice Harlan as I recall it.

Earl Warren:

Do you mind telling us what kind of a device it was?

Joseph E. Brill:

I beg your pardon.

Earl Warren:

Would you mind telling us what kind of a device it was that was used?

Joseph E. Brill:

It was a bug placed --

Earl Warren:

Bug is not very descriptive --

Joseph E. Brill:

The microphone --

William O. Douglas:

It was not a wire tap in the conventional --

Joseph E. Brill:

It was not a wire tap Mr. Justice Douglas.

It was a microphone concealed in a telephone box such as it's usually covering the type of telephonic equipment found in any home or any private office connected to unused telephone wires, run through those unused telephone wires into another building where a listening post had been established and where those unused telephone wires were then connected to a recording device, a recorder.

William O. Douglas:

Why do you say it wasn't a wire tap then?

Joseph E. Brill:

Well, it was not intended to be a wire tap, I must acknowledge.

William J. Brennan, Jr.:

They picked up conversations in room, not of telephone?

Joseph E. Brill:

It has surely did Mr. Justice Brennan.