Pugach v. Dollinger

LOCATION: District Court of Massachusetts

DECIDED BY: Warren Court (1958-1962)

CITATION: 365 US 458 (1961)
ARGUED: Jan 16, 1961
DECIDED: Feb 27, 1961

Facts of the case


Media for Pugach v. Dollinger

Audio Transcription for Oral Argument - January 16, 1961 (Part 2) in Pugach v. Dollinger

Audio Transcription for Oral Argument - January 16, 1961 (Part 1) in Pugach v. Dollinger

Earl Warren:

Number 111, Burton N. Pugach, Petitioner, versus Hon.

Isidore Dollinger, District Attorney of Bronx County, et al.

Mr. Todaro, you may --

George J. Todaro:

Your Honor.

Earl Warren:

-- proceed with your argument.

George J. Todaro:

Mr. Chief Justice, members of this Court.

In this case, an indictment was returned against the petitioner Burton N. Pugach in the State of New York, Bronx County, charging him with a crime of maiming, assault, burglary and conspiracy.

Another indictment was returned against him charging him with possession of a firearm.

Pugach was an attorney and a member of the New York Bar.

His office telephone had been tapped by the police of the State of New York, pursuant to an order obtained from the Supreme Court of the State of New York for a period of approximately four and a half months in the course of which, this Court must realize that any number of confidential communication were intercepted by the police and made use for whatever purpose they saw fit for a sedition where he had other associates in his office whose wires were also tapped.

So that this is the type of the case that reminds us that the right of privacy slowly or surely being eroded insofar as the protection of 605 is concerned.

John M. Harlan II:

Pugach is a lawyer, is he?

George J. Todaro:

I beg your pardon.

John M. Harlan II:

Pugach is a lawyer?

George J. Todaro:

Yes, Your Honor I might off the record -- say he's a little -- not sound mentally but that is no -- nothing to with the issue in this case.

Now, he brought an Action in the United States District Court for the Southern District of New York wherein he sought and injunction to restraint the District Attorney of Bronx County and the police commissioner of the State of New York from using and divulging wire-tapped evidence at his trial in the county court on both indictments.

The District Attorney moved to dismiss this complaint for failure to state a cause of action and that motion was granted by the District Court.

An appeal was taken and a motion was made in the Court of Appeals for a preliminary -- for an injunction pendente lite to keep the status quo until the full bench had an opportunity to pass on it.

The Circuit Court of Appeals granted a temporary state and if I maybe permitted, to quote from Judge Medina who over Judge Waterman grant at this stay stated as follows.

Pugach's argument is that Section 605 of the Federal Communications Act makes it a federal crime to tap a telephone and divulge or publish the existence, contents, substance, purport, effect of such intercepted communication that the defendants or their agents are about to commit this federal crime by further divulging and offering the wiretap in evidence at the trial.

The Supreme Court has in effect held the United States versus Benanti, 1957 that the constitutional and legislative authorization of wiretap on the State of New York is illegal and void, that if the evidence as we see at the trial and Pugach is convicted, he will be wholly without remedy, since under the Schwartz versus Texas, 1952, 344 U.S. 199, which is still in effect, the evidence will be admissible under the New York rules of evidence, even though illegally obtained and his conviction will not be revised.

He also claimed that the result to such violation of federal law would deprive him of his legal license and his license to practice law.

Pugach argued that unless we grant the injunctive relief, he prays that defendant on arrangement will go ahead and violate the federal statute with impunity, shielding themselves beyond the -- behind the constitutional legislative scheme of the State of New York that has been held by the Supreme Court to be invalid.

This is a probable argument.

Now, we have been unable to find the satisfactory answer and I like to quote from Judge Waterman who also joined in -- in granting this temporary stay, who stated, “Although it is (Inaudible) that the federal court should so presume to interfere with the only progress of the administration of justice in the state courts by issuing state order, the present situation is improbable, too."

It goes against the grain (Inaudible) and await the violation of a federal statute one knows is to be violated, while also known that the only if reversed the United States may have after the violation, is to proceed on 501 against the conscientious police office, was only obeying orders.

John M. Harlan II:

Did -- did he modify his views on -- Judge Waterman, I mean on --

George J. Todaro:

A modified up for a --

John M. Harlan II:

-- en banc here?

George J. Todaro:

Yes, Your Honor.