Lee v. Florida

PETITIONER:Lee
RESPONDENT:Florida
LOCATION:Spokane County Superior Court

DOCKET NO.: 174
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State appellate court

CITATION: 392 US 378 (1968)
ARGUED: May 02, 1968
DECIDED: Jun 17, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – May 02, 1968 in Lee v. Florida

Earl Warren:

Number 174, Clyde Franklin Lee et al, petitioner versus Florida.

Mr. Kirkland.

Edward R. Kirkland:

Mr. Chief Justice and if it may it please the Court.

This matter is before the Court today on oral argument arising out of a conviction in a state court of petitioners Lee, Brashin and merit in 1964.

The defendants were brought on for trial before the trial court on various counts of violation of the Florida Lottery laws and dissemination of raising information by telephonic methods.

The trial resulted in a verdict of guilty as to three of the defendants petitioners here and during the course of the trial, take recordings or wire recordings of conversations had between the petitioners Lee, Brashin and Marrette and others were introduced at the trial over objection of the counsel for the defendants below.

Now, the procedure used and I might address and say in this instant, Florida does not have a permissive wire tap law or a law similar to the one apparently just struck down by this Court in the Berger case that New York has.

The method adopted in this case were that police officers and deputy’s sheriff of Orange County arranged with the Winter Park Telephone Company to install a line, a telephone line in a house next to the petitioner Lee’s house and advised the telephone company they wanted a party line, that is a line that was on the same cable with the petitioner Lee.

The —

Potter Stewart:

Petitioner Lee already on a party line?

Edward R. Kirkland:

Mr. — the evidence I believe will show in this case that Mr. Lee ordered a private line.

There is some dispute as to whether or not he was ever advised that he was given a party line instead of a private line.

There is evidence that there were some conspiracies so to speak between the deputy sheriff who ordered the line in the one part telephone company to arrange a party line for Mr. Lee so that they could then intercept telephonic communications on that line and record them.

The testimony is here before the Court.

I can’t recall exactly what it was but I know that there were some evidence that there was a cast of agreement or conspiracy between the telephone company and the deputy sheriff to give Mr. Lee party line so that they can then ready how down the street which they did do.

Potter Stewart:

Well, the evidence shows as I understand it that your client Lee was advised that whenever he might’ve ordered he was advised that he was on a party line by the telephone company?

Edward R. Kirkland:

Yes, sir.

There is one witness named Noel I believe in the appendix and testified that he had advised Mr. Lee of that and I believe —

Byron R. White:

Yes, but is there a finding to that effect?

Edward R. Kirkland:

No, sir.

There was no finding to that effect, Mr. Justice White.

Byron R. White:

I think the opinion of the Florida Court say the facts in this case show the defendants requested private line but were in more by the telephone company that no private line was unavailable?

Edward R. Kirkland:

Yes, sir.

This is judicial license Mr. Justice White more than an actual factual reading of the testimony will show.

I believe the testimony will show —

Byron R. White:

Do you mean that a Florida Court on this historical fact finding here?

Edward R. Kirkland:

I’m sorry sir.

Byron R. White:

We should differ with the Florida Court on this?

No, sir.

I don’t think if this finding is really relevant to the issue if the Court wants to file or believe with the historical fact that the Florida properly stated the question and I would certainly be happy to go along because I believe the very ruling of the Florida Court is limited to the statement that Your Honor had just made or the finding of the Florida Court that there was knowledge on the part of Mr. Lee that he was getting a private — a party line instead of a private line.

Byron R. White:

The first and most obvious fact is that at no time did the police or the deputy sheriff seek a search warrant to obtain the information which they subsequently obtained by the use of this equipment.

Now, to go in a little bit more into the history of what happened.

Once the defendant Lee obtained this party line, the police arranged with the Winter Park Telephone Company to install a party — another party line in a house which were rendered — which was rendered by the police and an electronic actuator and some other sophisticated type of electronic surveillance equipment was attached to a wall outlet in the house which permitted the police to overhear by headsets and to record by equipment, recording equipment all the conversations that were either placed from an outgoing call or were received by incoming calls.

There is no evidence in the record nor has the state contend in its brief and our position to this petition that the police had probable cause to conduct a general search which I believe the State of Florida will have to concede.

They did in this fact, a mere search for evidence which of course has been condemned by this Court many times.

There was no effort whatsoever to obtain a search warrant to conduct the search.

The police merely arranged to have a party line installed in Mr. Lee’s house and for the telephone company to install a line whereby they could intercept and record the messages.

I believe that the distinction is there is one amounts to no difference for this reason Mr. Justice White in answer to your question.

Admittedly Mr. Lee, according to the findings of the appellate court of Florida had knowledge that there was a party line in existence.

This creates then a double standard if Mr. Marette who called in from his private line and if Mr. Brashin who called in on their private line are protected either under the Fourth Amendment or by Section 605 of the Federal Communications Act then it would resolve itself to an economic problem.

That is a person who can afford a private line carries the immunities of a private line without the burdens of perhaps being eavesdropped upon.

Now, like this Court has and of course counsel is certainly aware of Schwartz versus Texas a case some years ago where in this Court held that Section 605 of the Federal Communications Act does not apply in state court and we’re cognizant of this case and I’m satisfied the counsel for the respondent will argue this case very strongly.

But I have noted in the recent case of Pugach versus Dollinger where justices of this Court including the Chief Justice have stated that the rationale or the underpinnings of Schwartz had been swept away by the case of Benanti versus the United States.

Now, in the Pugach case, although there was an affirmance of the lower court, the issue was not directly connected with the question of the applicability of the rule of exclusion under 605 in this federal court.

Potter Stewart:

Well, in so far as the — in so far as this is not a statutory violation but rather a violation of the Fourth Amendment as made applicable to the states thorough the Fourteenth —

Edward R. Kirkland:

Yes, sir.

Potter Stewart:

— then you don’t have any problem with Schwartz do you since Mapp against Ohio your situation is clear so far as the exclusionary rule —

Edward R. Kirkland:

Yes, sir.

But at the time that the original brief were filed Katz versus —

Potter Stewart:

Katz was a federal case.

Edward R. Kirkland:

— had not been decided.

Potter Stewart:

Well, Katz was a federal case —

Edward R. Kirkland:

Was a federal case versus U.S., yes, sir.

Potter Stewart:

I’m not directing my question to your — to the Schwartz case which involved the wiretapping in violation of the federal statute, it was held in that case that even though the federal statute was violated the results of what was found in the wiretap could be introduced, could constitutionally be introduced into a state court criminal trial.

That decision preceded Mapp against Ohio?

Edward R. Kirkland:

Yes, sir.

Potter Stewart:

And in so far as in this case you’re relying not on the violation of the federal wiretapping statute but rather a violation of the — of your client’s right to be free from unreasonable searches and seizures you don’t have any problem about excludability do you since Mapp against Ohio.

It’s all I’m asking.

Edward R. Kirkland:

Well, we are underpinning our appeal on both that we’re asking the Court to revisit Schwartz versus Texas and to depart briskly from that decision.

In view of the statements by Mr. Justice Douglas in the Pugach case which for all intents and purposes swept away the rationale of the Schwartz versus Texas case.

Edward R. Kirkland:

We’re asking the Court to reverse on both grounds.

Now, briefly touching on the Fourth Amendment question reiterate once again defendant Lee was in his home talking on the telephone while police officers were intercepting and recording conversations that he had with the petitioners Brashin and Marette and others.

In the recent case Katz versus United States, the — this Court reversed a conviction based upon evidence obtained by the federal officers after they had placed an electronic device on the top of a public telephone booth and recorded the conversation of Mr. Katz and others concerning the dissemination of bidding information or book making.

Potter Stewart:

Does — Mr. Kirkland, does it appear exactly what was done here that policemen rented at this house or got access to this house and which there was a phone on a party line of your client?

Edward R. Kirkland:

No, sir.

There was not a phone —

Potter Stewart:

They had one installed?

Edward R. Kirkland:

Yes.

Potter Stewart:

Then they have the phone installed on —

Edward R. Kirkland:

Yes, sir.

Potter Stewart:

— which is on your client’s party line and did they simply pick up the receiver and listen or did they actually taps some wires to put on some kind of.

Edward R. Kirkland:

The evidence in the appendix says, states that the officer who did it disconnected two screws at the base within the home that they had rented, the base board which made a direct connection with the line of the petitioner Lee and it facilitated the recording because it was not necessary then to release or pick up the receiver which gives a click and it was a bit sophisticated for me but apparently this was in fact a direct connection with the party line.

William J. Brennan, Jr.:

In other words, you know it had.

You say as I understand it that the phone in the Lee house they could hear everything that went on with prior appellant’s house.

Edward R. Kirkland:

Lee was the house that the petitioner.

Yes, sir.

Now —

William J. Brennan, Jr.:

In the house, the police rented?

Edward R. Kirkland:

Yes, sir.

William J. Brennan, Jr.:

As I understand it, they didn’t have to take the receiver —

Edward R. Kirkland:

That’s correct.

William J. Brennan, Jr.:

— because they made an actual tap on the lines connected with your client’s phone, is that it?

Edward R. Kirkland:

This is what the testimony I believe and the appendix will show that instead of lifting up to the phone to hear the conversation when it ring of course —

William J. Brennan, Jr.:

But I gather the tap, it was a tap even though it was made under wires in the officer’s house.

Edward R. Kirkland:

Yes, sir.

There was a tap to the extent that there were two wires.

William J. Brennan, Jr.:

They did not have to lift their own —

Edward R. Kirkland:

That’s correct.

They did not have to lift up the phone they had a —

William J. Brennan, Jr.:

— when Lee was on the telephone —

Edward R. Kirkland:

It automatically —

William J. Brennan, Jr.:

— party line.

Edward R. Kirkland:

It automatically recorded.

William J. Brennan, Jr.:

Someone in the officer’s house to pick up and then they click and they would’ve known.

Edward R. Kirkland:

That’s correct sir.

William J. Brennan, Jr.:

But now they didn’t have to?

Edward R. Kirkland:

They didn’t have to.

They have what they call automatic actuator.

William J. Brennan, Jr.:

Well, how can difficult an ordinary tap?

Edward R. Kirkland:

Well, it doesn’t in my view.

It’s a tap on their own party lines.

Edward R. Kirkland:

A tap on that own party line it is recording, it maybe once again a distraction of without a difference.

I don’t understand.

There is a — the —

William J. Brennan, Jr.:

Well, as I understand it, they put in an ordinary party line.

Edward R. Kirkland:

Yes, sir.

It was a tap just to have another party what is not (Inaudible) —

Edward R. Kirkland:

The tap that was involved was the use of this —

There’s tap on that stage.

Edward R. Kirkland:

At that stage, no.

Therefore, if they should stop there and they just picked up the receiver and listen to these conversations there would’ve been tap, would it?

Edward R. Kirkland:

It would’ve been an interference or an interception, it may not have been a tap.

That was your answer (Inaudible).

Edward R. Kirkland:

No, not a tap as such.

Picking up the telephone and listen to the conversation.

They had a gadget record on their own in the party line which enabled the (Inaudible).

That is a fair statement of what actually.

Earl Warren:

By connecting up with the telephone line?

Edward R. Kirkland:

Yes, sir.

Your Honor, but connecting up with the actual outlets of the wire as opposed to the — cables are.

William J. Brennan, Jr.:

They cannot be detected because they don’t click on the telephone that Lee could hear and know that someone else was on the party line.

Edward R. Kirkland:

That’s correct.

And to —

Abe Fortas:

Well, suppose you could call sort of neighborly interception.

Byron R. White:

Would you if your — if your client had just short of his own telephone in his own house and made a connection with the wires in order to record his own conversations for his record, I would suppose you would under your theory argue that he was violating the Federal Communications Act.

Edward R. Kirkland:

Not as long as he did not divulge them.

Byron R. White:

What?

Edward R. Kirkland:

Not as long as he did not divulge them.

The condemnation in 605 is not the interception but it’s the divulgence.

Byron R. White:

Well, let’s assume he divulge them, you would say you would be violating the federal communication.

Edward R. Kirkland:

Unless he had — well, no, sir.

Because he would have consent then or he would give consent to himself and 605 inhibits the —

Byron R. White:

Well, why can’t the officers exercise the same privilege and attach their own party line?

Edward R. Kirkland:

Because they are divulging conversations —

Byron R. White:

They are not participating here.

Edward R. Kirkland:

Which they’re not participating in and which they have gotten to consent to interrupt or intercept and to divulge.

Byron R. White:

And if your client had put in such a device on his own phone and had recorded other people to conversations you would say he would violate the —

Edward R. Kirkland:

He absolutely would be violating 605 if he intercepted and transcribed and published or disseminated this information, he would be in direct violation of 605.

Byron R. White:

Although, it wouldn’t if he just picked up the phone and listen to him.

Edward R. Kirkland:

No, 605 inhibits the publication of it not necessarily the listening to it.

Byron R. White:

But if you — if he picked up the phone and listen to it and then published even though violation.

Edward R. Kirkland:

If he picked up what phone Mr. Justice White?

Byron R. White:

His own phone.

Edward R. Kirkland:

Certainly not.

Byron R. White:

Certainly not what?

Edward R. Kirkland:

He would not have violated 605 if he picked up his own phone and the load —

Byron R. White:

Does somebody else with conversation?

Edward R. Kirkland:

And listen to other conversations and loads —

Byron R. White:

That’s an ordinary risk of the thing on the party line, is it?

If — if one is one party line obviously and takes as to understand that —

Edward R. Kirkland:

Well, I live in a small community outside of Orlando.

There are no private lines.

I practice law there and I’m exposing myself to the danger of a client calling me up and say and I just killed my wife —

William J. Brennan, Jr.:

Well, I’m trying to help you but —

Edward R. Kirkland:

I agree is a firmly question and I’m trying to give us suspicious answer perhaps.

Abe Fortas:

Well, isn’t that — does it make any difference that the police here rented the house and installed the telephone in the house on this private line for the purpose of eavesdropping, is that make any difference —

Edward R. Kirkland:

Certainly does.

Abe Fortas:

— to any legal matter?

Edward R. Kirkland:

It does, certainly because this partakes then of a general warrant or a search for evidence as opposed to a mere in adverting lifting up of a line and interception —

Abe Fortas:

I’m saying is that this is not the same as if the — a neighbor who is on the party line in regular course of life picked his party line and happen over hear the conversation and then reported it to the police, is that your point?

Edward R. Kirkland:

I certainly believe that there is a definite stronger case made for this appeal if in fact it partakes of a general search which the state must contend that concerning the —

Abe Fortas:

And also police — the police here rented the house, had the phone installed on the party line for the purpose of conducting what you say was a search.

Edward R. Kirkland:

Yes, sir.

As a matter of fact the officer who did it in response to this question made this answer.

The question in other words, it was something more than coincidence that this line happened to be a line on a party line with 411 Manor Road and the answer I beg your pardon.

The question, that was something more than a coincidence that the line that was installed was on a party line with the Lee house.

Answer, Yes, we did installed it for the fun of it and it is obvious throughout the entire examination of the witness that they’re not only talked the Winter Park Telephone Company in the giving Mr. Lee a party line when he actually ordered a private line but also the arranged with the Winter Park Telephone Company to install another party line in the house next door in order to conduct this surveillance.

Potter Stewart:

How long is your client had his phone installed at the time of the police have the phone installed it?

Edward R. Kirkland:

I believe if Your Honor please that Mr. Lee installed his telephone, I may be absolutely incorrect.

It seems to me it was around July 19th, Mr. Lee was in the officers installed their telephone one week later.

So, it was a matter of six or seven day.

William J. Brennan, Jr.:

Is that to say with police application pending at the time the police worked this out with a telephone company give him only a party line?

Edward R. Kirkland:

Historically, I’m not sure if I’m speaking off the record — out of the record, I hope not but it occurs to me that they have been following Lee and observed him going into this house and rented and immediately contacted the Winter Park Telephone Company in an effort to get a party line for Lee and for themselves to conduct this electronic surveillance.

Hugo L. Black:

I don’t believe who have heard and any mentioned here, what worthy his message was about.

Edward R. Kirkland:

The messages — Mr. Justice Black —

Hugo L. Black:

Just trying to see if —

Edward R. Kirkland:

Mr. Justice Black, the messages were all or generally summed up in the appendix and they dealt with dissemination of lottery information, the numbers that had been bet or the numbers that had been played a tally sheet that I believe that Rashin and Marret were allegedly picked people in the lottery business and they would phone in to this house to —

Hugo L. Black:

This was a lottery place, was it?

Edward R. Kirkland:

In a neighborly way, yes.

It was allegedly a lottery.

Edward R. Kirkland:

That’s what —

Hugo L. Black:

I can see with reference to this neighborly business of lottery?

Edward R. Kirkland:

Lottery, yes.

Hugo L. Black:

These officers dare to get.

Edward R. Kirkland:

I didn’t hear the first part Your Honor.

Hugo L. Black:

I think was this neighborly business of this lottery business which are the violation most of the law?

Edward R. Kirkland:

It is and was.

Hugo L. Black:

It was?

Edward R. Kirkland:

Yes, sir.

Hugo L. Black:

That’s what they were invading his privacy about, is it?

Edward R. Kirkland:

Well, I assume that they —

Hugo L. Black:

Was it about anything with lottery?

Edward R. Kirkland:

Sir?

Hugo L. Black:

Was it about anything with breaking the law —

Edward R. Kirkland:

I don’t know.

They didn’t divulge to me anything except the bad part of the conversations.

Hugo L. Black:

Well, that’s what they got, was it?

Edward R. Kirkland:

That’s what they got.

Yes, sir.

Hugo L. Black:

About violating the law.

Edward R. Kirkland:

Yes, Your Honor and this is the only evidence I believe in the case —

Hugo L. Black:

You say this was his residence?

Edward R. Kirkland:

This was his residence.

Hugo L. Black:

You mean you as having lottery in his residence?

Edward R. Kirkland:

No, sir.

He was — he was published — he was listening and to and talking on the telephone from his residence.

Hugo L. Black:

Just talking on the telephone about the lotteries.

Edward R. Kirkland:

Yes, sir.

Hugo L. Black:

And receiving messages about what?

Edward R. Kirkland:

About the number that had fallen, the coupon lottery number that had fallen and on one or two occasions I believe the appendix will show where there was a rundown of the number of wagers, the dollar amounts and the numbers that were wager.

Hugo L. Black:

It was his privacy about violating the law that officers will have to invade, was it?

Edward R. Kirkland:

Well, yes sir and if they had known that he’d been violating the law assuming they would’ve got the search warrant which they should’ve as they did in the Osborne case and I wouldn’t be here at this time if they had followed the —

Hugo L. Black:

That’s what it’s all about.

Edward R. Kirkland:

It’s all about his privacy in violating the law that was interrupted, yes sir and must be candid.

Thurgood Marshall:

Mr. Kirkland, getting back to party phones all around Orlando you were talking about and assuming that you could assume that somebody might listening on your conversations, would that be correct that you wouldn’t assume that somebody will be recording them?

Edward R. Kirkland:

I would certainly hope not Mr. Justice Marshall and I would hope that I would have some privilege communication rights at least under the attorney-client relationship.

Thurgood Marshall:

That they would not be used?

Edward R. Kirkland:

That would not be used.

Now, as one thing to hear it, it’s another thing to disseminate it or to publish it and even yet another thing to use it as the sole incriminating evidence in a trial.

Earl Warren:

How many people were on the spotted line?

Edward R. Kirkland:

It’s not clear from the evidence but when you say four-party line and I believe there were two persons on it Mr. Chief Justice.

Earl Warren:

Issue a numbers, his number that petitioner’s number and the police number.

Edward R. Kirkland:

No, as a matter of fact I’m incorrect.

There were others on the line and because we attempted to get their conversations and the state law does not permit us to have this discovery but there are other people on the line whose conversation were likewise recorded because this infirming machine could not differentiate between intrastate, interstate, party line calls or anything anytime the wire was picked up in the Lee house or incoming call was made into the Lee house, the electronic currents actuated this gadget and started recording all of the conversation that took place.

So, there were others on there whose privacy were being invaded and were not violating law apparently.

I’ll reserve my few comments for rebuttal.

Earl Warren:

Mr. Allbritton.

Wallace E. Allbritton:

Mr. Chief Justice, may it please the Court.

The controlling question as I understand it to be in this case is whether a person who is operating an illegal gambling operation over a party line telephone has a constitutionally protected reasonable expectation of privacy.

Before addressing myself to that question, I would like to comment very briefly on the remarks made by my colleague.

First, to answer a question put by one of the justices, petitioner Lee did in fact know that he was on a party line and he had been told by the man who installed the party line telephone and that is in the appendix.

Next, one of the members of this Court inquired as to whether or not the Court below did find that the petitioner had been told that he was on a party line telephone and that court did sole said out in its opinion and that is in the appendix also.

Now, we contend that there was no wire tapped in this case within the meaning of the Federal Communications Act.

All the police officers it did was to have a telephone installed in a house on a party line and in order not to have to pick up the handle of it every time the telephone rang in there, they put an automatic actuator attached to their own party line so that when the telephone rang in the petitioner’s house they could hear it without having to go through the manual operation of picking up the telephone handle.

Earl Warren:

How about if it rang in somebody else’s home, somebody else was on that party line, did it record all of their conversations too?

Wallace E. Allbritton:

I don’t know sir but I would assume that it would.

If it did it is not brought out in the transcript that’s before this Court.

Earl Warren:

Well, it took everything it over the line it would follow, wouldn’t it if they did get all of those?

Wallace E. Allbritton:

Yes, sir.

That’s the reason I say that I assume it would.

William J. Brennan, Jr.:

And does the record show that the authorities were responsible for Lee begetting only a party line rather than a —

Wallace E. Allbritton:

Absolutely not.

William O. Douglas:

How then is this distinguishable from the Silverman case where there was spike driven in the wall and turned into a giant microphone?

Wallace E. Allbritton:

The Silverman case as I understand it was —

William O. Douglas:

It’s a different instruction but the wires run in —

Wallace E. Allbritton:

You’re talking about the heating apparatus —

William O. Douglas:

Where you have a different kind of wire but it doesn’t reach inside and it is triggered in operation from an outside element that’s hooked up one physical unit.

Wallace E. Allbritton:

If I recall correctly I believe that case turned on the fact that there was a physical intuitive — in that case.

William O. Douglas:

So that telephone wire that —

Wallace E. Allbritton:

Sir?

William O. Douglas:

Here, they hooked up with a telephone wire running into defendant’s house.

Wallace E. Allbritton:

Yes, sir.

What’s not running into his house.

No, sir.

It was hooked up to their own party line.

William O. Douglas:

I understand it.

It hooked up with something that runs into this house

Wallace E. Allbritton:

It was hooked up to their telephone so that they could over hear the conversations.

Now, we condemn —

William J. Brennan, Jr.:

— are you starting to —

Wallace E. Allbritton:

Sir?

William J. Brennan, Jr.:

— tell me that no, it was not the fact that the authorities were responsible for petitioner to get him only a party line?

I thought your adversary said that that was —

Wallace E. Allbritton:

He is so contend and I contend just strongly that they did not —

William J. Brennan, Jr.:

Was only fact finding on this?

Wallace E. Allbritton:

No,sir.

Not that I know of and there isn’t anything in the transcript before this Court I think that would in anyway prove that the police were responsible for Lee getting a party line rather than a private line.

Nothing whatsoever as I read it.

Byron R. White:

I suppose on your position that you would say there was no tap and no violation of the Federal Communications Act if the police after having acquired the party line had gone outside their own house and on some other part of the telephone line tapped the wire because they could’ve picked the phone and listen that they could also listen on the line anywhere else and anywhere else they wanted to do.

Wallace E. Allbritton:

Not anywhere else, no, sir —

Byron R. White:

Perhaps none of somebody else’s property.

Wallace E. Allbritton:

If they —

Byron R. White:

What about along the street when the telephone rang, it’s just like put a tap on there.

Wallace E. Allbritton:

No, sir.

I don’t think that we could sustain anything like that.

Byron R. White:

What’s the difference between that and this device they put in their own house?

Wallace E. Allbritton:

Well, on a party line there is no a law which prevents a man from picking up the telephone and hearing the conversation of two other people and may it not be the proper thing to do but there’s no law against it.

William J. Brennan, Jr.:

But if you do it I take it the one you overhearing knows that you’re on the other line, doesn’t it?

Wallace E. Allbritton:

No, sir.

I don’t agree with that.

William J. Brennan, Jr.:

Well, I don’t believe on the party lines.

Wallace E. Allbritton:

Oh, I see.

Let me —

Thurgood Marshall:

Have you got a special kind of party lines in Florida, you don’t hear it click?

Wallace E. Allbritton:

No, sir.

They are the same type of party lines that you find all over the country.

Now, assume that they are clicks there.

Thurgood Marshall:

When you pick up the receiver, there’s a click?

Wallace E. Allbritton:

Yes, sir.

Thurgood Marshall:

And in this, if that if you picked the receiver he would’ve known somebody was listening?

Wallace E. Allbritton:

If he had heard the click, he would, yes sir.

Thurgood Marshall:

Well, assuming he had normal hearing and he heard the click, he would know somebody was listening in or would the device the way you put it on he could never know whether that somebody was listening.

Wallace E. Allbritton:

And if you forgive me sir, I believe that to say that he would’ve known that there was someone hearing what he had to say Your Honor I believe that’s a conclusion sir.

He may or may not.

He, it depends on the click if he could hear it if the click was audible.

And we don’t know.

Thurgood Marshall:

Well, isn’t that the reason you put this other one in there, the activator so that he wouldn’t hear it click?

Wallace E. Allbritton:

No, sir.

That is one of the reasons.

The main reason was to keep the police officer from having to pick up the thing every time the telephone rang and he had a headset on, where he could hear it.

Thurgood Marshall:

You would save his energy, you’d save the policeman’s energy.

Wallace E. Allbritton:

Yes, sir.

That this becomes arguous at times over a period of time.

Now, as I believe what we are concerned here with is whether or not the petitioner Lee in conducting an illegal gambling operation over a party line telephone had a constitutionally protected reasonable expectation of privacy.

Now, on the one hand we have Hester v. United States which says that a man in an open lot does not have a reasonable expectation then on the other hand we have the recent Katz case.

I agree with the Katz case.

I think that when a man goes in a telephone booth and closes the door, pays the toll and talks that he is justified to believe that the words he speaks can only be heard for the — by the person for whom they are intended.

Byron R. White:

Well, are you suggesting the Katz is retroactive and it applies to this case or not?

Wallace E. Allbritton:

I would hope that it would be, I don’t know whether it is or not and whether courts going to have it be retroactive or not.

In ascertaining —

Byron R. White:

You — you urged us to hold Katz retroactive?

Wallace E. Allbritton:

I don’t believe that you would have to hold Katz to be retroactive in order to sustain this case Justice White.

Because I don’t believe that the petitioner Lee had a reasonable expectation that what he spoke would be heard by only — by the person for whom intended that is protected by the Constitution.

Byron R. White:

So, Katz whether it’s retroactive or not it’s just irrelevant?

Wallace E. Allbritton:

No, I don’t think it’s irrelevant at all.

Byron R. White:

Well because there’s nothing in the facts of this case just wouldn’t fall within Katz anyway.

Wallace E. Allbritton:

I don’t think Katz that the case here can be controlled by Katz.

Now, in determining whether or not there is a reasonable expectation, first we have to look at where the person is at; two, what the person is doing; and third how it is being done.

Now, here the man was in his private house; two, he was conducting an illegal gambling operation; and three, he was doing it over a known party line.

William J. Brennan, Jr.:

Well, your case really I gather can stand to this that he took all of the risks of being overheard and that ought to dispose both of his 605 argument and of his Fourth Amendment argument.

Wallace E. Allbritton:

Absolutely.

Let me — I believe that what this man was doing in this case is important in determining whether or not he had a reasonable expectation of privacy.

For example, I might point out to the Court that a college boy calling a girl and asking her to go out, he is not too concerned I don’t believe with whether or not some one over hears him because he knows that he even he is overheard —

William J. Brennan, Jr.:

How many issues to be exact?

Wallace E. Allbritton:

— that —

Thurgood Marshall:

Wasn’t this man in the same business as Mr. Katz was?

Wallace E. Allbritton:

Yes, Your Honor, he was.

He was in gambling.

Thurgood Marshall:

Now what does the business have to do with it?

Wallace E. Allbritton:

It goes to ascertaining his intent whether or not he had a right to believe he had a constitutionally protected right of privacy.

Wallace E. Allbritton:

That’s what he has to do with it.

Earl Warren:

Did the police know that he was violating the law when they put this tap on?

Wallace E. Allbritton:

I can only assume that they did or else they would not have installed the party line telephone to overhear the conversation and again Mr. Chief Justice I deny it was a tap.

Earl Warren:

— as to that just to find out whether he was or not.

Wallace E. Allbritton:

No, sir.

I believe that they knew it and I believe that they can —

Earl Warren:

Is it in the record that they knew it?

Wallace E. Allbritton:

No, sir.

I don’t believe it is.

If it is, I don’t recall it at this time.

Byron R. White:

Well, Mr. Allbritton, it seems to me that you’re saying that the police may run the house or install a party line in order to listen on and establish party line the conversations between other people on the party line that you would necessarily argue that even without renting a party line from any from the telephone company that they could just simply tap a party line anytime or any place they wanted to because the people who talk on that line anticipate that somebody is going to overhear them and if it would justify the police in buying a party line and picking up the receiver and listening to other parties on the line I don’t know why it wouldn’t justify the police in just not running a party line but just tapping the wire.

Wallace E. Allbritton:

Well, if — then if they tap the wire —

Byron R. White:

Why isn’t this just one smooth way of tapping a party line, you just rent one?

Wallace E. Allbritton:

Yes, sir.

It is a smooth wire of tapping a party line, I agree.

This was a legitimate investigation by the sheriff’s office into the crime activities in Orange County.

Byron R. White:

Well, you would say then they wouldn’t have had to rent the party line at all.

Wallace E. Allbritton:

No, sir.

I don’t say that because there, if they had their own party line —

Byron R. White:

I know but —

Wallace E. Allbritton:

— then they have a right to pick it up and hear —

Byron R. White:

Or let’s just say — I’m not — this is just another way of tapping a wire as you said.

It’s another way of tapping a wire.

Wallace E. Allbritton:

It’s a way of overhearing a conversation Mr. Justice White.

I don’t agree that was a tap.

Byron R. White:

Well, I know but under 605 you wouldn’t I’m sure that just to be renting a party line probably to tap under 605 but we’re talking about the Fourth Amendment also.

Wallace E. Allbritton:

Yes, sir.

And getting to the Fourth Amendment and going back to what he was doing, I again reiterate that the college boy would not be too concerned with who overheard him for this reason if the Court please he knows that he is not violating any law and he knows he’s not going to be prosecuted.

Now, that isn’t the case here.

This man knew he was violating the law and he knew that the police were trying to shall we say apprehend him or catch him.

Wallace E. Allbritton:

And so, he had reason to believe and be cautious in the words that he spoke.

Earl Warren:

And I’m wondering if they could tap or whatever you call it this particular party line in a community like this where I understand there were nothing what party lines —

Wallace E. Allbritton:

No, sir.

They were private lines.

Earl Warren:

Is that mean that the police in such a community that tap any lines of it wanted to in a city anytime he wanted to?

Wallace E. Allbritton:

No, sir.

Earl Warren:

Alright, why do you draw the line?

Wallace E. Allbritton:

Here, if the petitioner had been talking on a private line in his own house then as far as I’m concern I would be out of Court because there I believe that the man would have a constitutionally protected reasonable expectation of privacy.

But where he is not talking on a private line he knows he is talking on a party line, I don’t believe that he has such a constitutionally protected reasonable expectation of privacy.

I think therein lies the turning point in this case.

Earl Warren:

Well, let’s leave it to just then to the party lines.

In your opinion the police can tap any party line a community and monitor it was long as they want without any consequences.

Wallace E. Allbritton:

As long as they have a right to do so in this sense sir, in the sense that they are in a house that they pay the rent on it and that they have their own telephone installed in there.

William J. Brennan, Jr.:

Well, suppose they installed in police headquarters and apparatus like this which tied in with every party line in the community they’re on their own police headquarters they did exactly what they did here, you think that’s alright?

Wallace E. Allbritton:

No, sir.

I don’t.

William J. Brennan, Jr.:

Why?

How does that differ from that?

Wallace E. Allbritton:

I think that is too broad a right to give to the police officers.

To have him overhear everything that goes on in town.

William J. Brennan, Jr.:

How is that differ from this?

Wallace E. Allbritton:

Here they were only listening on one party line, Justice Brennan.

Earl Warren:

Where do you draw the line?

Wallace E. Allbritton:

I draw the line sir between what a man have the reasonable right to believe.

Now, if this man as I say had been talking on a private line then I say to you sir that I would be out of Court.

Earl Warren:

Yes, but we’re dealing with party lines and where do you draw the line as to what lines the police can —

Wallace E. Allbritton:

Alright, sir.

Earl Warren:

— and what was they cannot?

Wallace E. Allbritton:

I will answer that this way, I would say that if they had just gone out and through an undercover agent and ascertain where the party line was at and then put a device on it where they could overhear it then I think that’s wrong.

I think that would be incorrect and I don’t believe to this Court would uphold it.

Wallace E. Allbritton:

I don’t believe they can do that but when they rent a house and pay for the installation of a telephone and they do it in their own house, on their own telephone and it’s not a violation of any law whatsoever then I don’t see anything wrong with it.

I think that is legitimate criminal investigation, if the Court please.

Earl Warren:

Well, they didn’t rent this for a home.

They rented it for this purpose, didn’t they?

Wallace E. Allbritton:

Absolutely, they did.

Earl Warren:

Well, what is difference if they did it for that purpose between that in accomplishing the same purpose for a little different way as Mr. Justice Brennan suggested putting a tap to police stations?

Wallace E. Allbritton:

Well, the difference is I don’t believe this Court would permit them to go out ipso facto you might say and tap a party line.

Here, I don’t believe there was a tap.

It was merely that they overheard what was going on and that is what the petitioner and is the RISK, the risks that the petitioner took when he spoke on a party line telephone party.

Thurgood Marshall:

Well, why install the party lines and rent a house, why not just rent a room?

Wallace E. Allbritton:

I would suspect sir that there wasn’t a room nearby that they could use.

Hugo L. Black:

As I understand you, you have a very simple proposition which is either right or wrong?

Wallace E. Allbritton:

Yes, sir.

Hugo L. Black:

What you have is party lines installed?

Wallace E. Allbritton:

Yes, sir.

Hugo L. Black:

These people may have rented this for a home or they may have rented it for gambling but that’s not the theory.

They had it.

They had a party line, they knew, the Court knew that they had a party line.

These other people got on as party lines and that’s where you draw your line as I understand it.

Wallace E. Allbritton:

Yes, sir.

Hugo L. Black:

Do you say if they are simply on party line they’ve got the same right to use it as anybody else that’s not a tap.

Wallace E. Allbritton:

That’s right.

Hugo L. Black:

What you say is that stops right there that they put any kind of device that do anything of that kind that it would be illegal, that’s my understanding of what your claiming and that you are putting it all on to this that they will own the party line right through it.

Wallace E. Allbritton:

Yes, sir.

They were all on the party line.

Hugo L. Black:

Do you claim rightfully?

You maybe wrong.

Wallace E. Allbritton:

I may be.

Hugo L. Black:

But your claim that since that is the case, that the Constitution shouldn’t protect the gentlemen who is running the lottery.

Wallace E. Allbritton:

That’s right and that’s it.

Wallace E. Allbritton:

I’d like to bring to the Court’s attention what this Court had to say in Katz versus United States.

The Court laid down a root to there and I want to quote it, this Court had this to say, “What a person knowingly exposes to the public even in his own home or office is not a subject of Fourth Amendment protection.”

And I say to this Court that one of the best ways to expose anything to the public is to talk about it on a party line telephone.

Byron R. White:

Well, Mr. Attorney General, it seems to me that to exclude this evidence would require one either holding that this was a violation of 605 in which event, you have to overrule force?

Or holding that, this is a violation of the Fourth Amendment in which event you would have to hold Katz retroactive, wouldn’t you?

Wallace E. Allbritton:

No, sir.

I don’t — maybe I don’t understand you possibly.

Byron R. White:

Well, do you think the — do you think before the Katz case was decided that this was a violation of — would’ve been a violation of the Fourth Amendment.

Wallace E. Allbritton:

Yes, I do.

Byron R. White:

Without Katz.

Wallace E. Allbritton:

Yes.

Byron R. White:

Why?

Wallace E. Allbritton:

Because I believe that the —

Byron R. White:

Now when you — are you — I thought you were arguing this was not a violation of the Fourth Amendment.

Wallace E. Allbritton:

Perhaps I misunderstood you sir, I’m sorry.

Byron R. White:

Well, before the Katz case was decided now would the state have been permitted under the Fourth Amendment to use the evidence which it had got over this party line.

Wallace E. Allbritton:

I believe it would have, yes sir.

Byron R. White:

And I know you think that after Katz the same thing but —

Wallace E. Allbritton:

Yes, sir.

Byron R. White:

— but why would the state if that permitted to use it?

Wallace E. Allbritton:

The state would have been permitted to use it I believe as I have reiterated —

Byron R. White:

Well, wouldn’t have been permitted to use it under Olmstead?

Wallace E. Allbritton:

Yes, sir.

They could have.

That’s true Olmstead —

Byron R. White:

Well, when was the Olmstead overruled?

Wallace E. Allbritton:

I believe that Katz case finally cut the underpinnings I believe is the word that was used from the Olmstead case, I believe.

Abe Fortas:

Mr. Attorney General, could I ask you a question?

In this community where I gather people I have party line telephones let us suppose that a client telephones his lawyer, client telephones his lawyer.

Now the client can waive the lawyer-client privilege, does the notice upon which you’re relying here, the notice that the publicity of the use of the party line operate to waive the attorney-client privilege with respect to the matter that the client has communicated to the attorney?

Wallace E. Allbritton:

I can’t answer that.

I have not given any thought whatsoever to that type of —

Abe Fortas:

Well it’s kind of related to the proposition which you are stating.

What you’re saying is that the use of a party line telephone waives any right of the user to insist upon the confidentiality of the communication.

Wallace E. Allbritton:

Yes, sir.

I do.

Abe Fortas:

But I — would you extend that to the case of a client communicating with his lawyer?

Wallace E. Allbritton:

I don’t know sir.

I can’t answer that right after that.

Hugo L. Black:

Was this man communicating with his lawyer?

Wallace E. Allbritton:

No, sir.

He wasn’t communicating his lawyer and —

Abe Fortas:

Well, this hasn’t answered the question whether this man was communicating with his lawyer or not.

You still have question of principle here, don’t you Mr. Attorney General?

Wallace E. Allbritton:

Yes, sir.

You do and —

Abe Fortas:

It’s to whether a person who uses a party line telephone surrenders whole claim to confidentiality.

You also have the question here as to whether the police were conducting a search and deliberately adopted this device to conduct the warrantless search.

Those are the questions in your case.

Wallace E. Allbritton:

Let me put it this way sir.

I don’t believe that the use of the party line means that a person has released all claims or rights of confidentiality but I do believe that it does release his right to have his conversation protected by the Fourth Amendment to the Constitution.

Abe Fortas:

I see.

Do you think that it’s only with respect to Fourth Amendment right that the use of a party line constitutes a waiver or surrender?

Wallace E. Allbritton:

I can’t give you a categorical answer on that sir.

Hugo L. Black:

I guess what you’re really claiming is the aid or opportunity of party line listen to his neighbors accusation when he has a party line that the Constitution doesn’t step in that make him a criminal if he exposes what he heard on his party line.

Wallace E. Allbritton:

That’s true sir.

I do agree with that.

I have nothing follow up.

Edward R. Kirkland:

Very briefly touching on two points in answer to Justice White’s inquiry about the retroactivity of Katz.

I don’t think this is that violent because it would not be necessary to make Katz retroactive as to trial to this cause and the grounds on which we are relying are preceded — the trial preceded Katz, the grounds on which we were relying are similar to those raised in Katz and would be merely reaffirming Katz if this Court applied the rationale of Katz and not making it prospective in application as opposed to retroactive.

Edward R. Kirkland:

The point that the general here has completely overlooked is that there are three appellants.

The record indicates that Brashin and Marette had party — had private lines and there was no evidence that they knew Mr. Lee was on a party line.

So certainly, when they picked up the phone and dialed Mr. Lee, whatever their motive was, they did not exposed themselves to any recordation, interception or interference and the evidence in the case that convicted Brashin and Marette was nothing more than the recorded conversations and I think this answered Mr. Justice Fortas’ question that the incoming callers certainly should be given the protection and I think in this case the outgoing caller should be afforded to protection.

Since he has granted the privileges of the line and the immunities, he certainly should not have carried the burdens of having a party line.