Silverman v. United States

PETITIONER:Silverman
RESPONDENT:United States
LOCATION:Grace-New Haven Community Hospital

DOCKET NO.: 66
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 365 US 505 (1961)
ARGUED: Dec 05, 1960
DECIDED: Mar 06, 1961

Facts of the case

Question

  • Oral Argument – December 05, 1960 (Part 2)
  • Audio Transcription for Oral Argument – December 05, 1960 (Part 2) in Silverman v. United States

    Audio Transcription for Oral Argument – December 05, 1960 (Part 1) in Silverman v. United States

    Earl Warren:

    Mr. Williams, you may proceed.

    Edward Bennett Williams:

    Mr. Chief Justice, may it please the Court.

    The question that’s presented to the Court in the case at bar concerns the admissibility of evidence in federal courts.

    Precisely stated, the question is whether evidence which is obtained by agents of the Federal Government by the use of this electronic eavesdropping device which his known as a spike microphone which was inserted into the party wall of the private dwelling house of petitioners so that all of the conversations which took place in that dwelling house over a period of days could be overheard by the federal agents, whether evidence of that kind may be offered against the petitioners in a criminal proceeding.

    The facts are these, if the Court please —

    John M. Harlan II:

    This is the device?

    Edward Bennett Williams:

    This is precisely the device, Your Honor.

    The facts are these.

    In July of 1958, the petitioners were indicted for violation of the gambling statutes of the District of Columbia and for violation of the Federal Gambling Tax Act.

    The indicted sounded in four counts.

    They charged the petitioners, in substance, with accepting over the telephone wagers on baseball games and boxing matches.

    It charged that these were accepted in a row house at 408 21st Street, Northwest in the District of Columbia.

    The house was a two-story dwelling house with four rooms, two upstairs and two downstairs.

    On April 30 of 1958, a search was made of these premises pursuant to a search warrant issued by the United States Commissioner for the District of Columbia.

    As a result of that search, certain records were seized and certain — certain paraphernalia were seized.

    The search warrant was issued, if the Court please, on an affidavit that was signed by two agents of the Bureau of Internal Revenue Service and by an officer of the Metropolitan Police Department and, it alleged in essence that over a period of nine days from April 21 to April 30, from a vantage point, otherwise unidentified, they were able to overhear conversations in which the petitioners were engaged and which they characterized as wagering conversations.

    A motion was filed under Rule 41 of the Federal Rules of Criminal Procedure for the return and the suppression of evidence, for the return of the physical object seized in their suppression, and for the suppression of the conversations overheard on the ground that they were in violation of petitioners’ rights under the Fourth Amendment to the Constitution of the United States.

    That motion came on for hearing before Judge Holtzoff of the United States District Court for the District of Columbia.

    At the hearing, a stipulation was entered into by counsel for the Government with counsel for the defense that agents of the Federal Government had gone onto the premises at 410 21st Street which was the row house immediately contiguous to the petitioners’ that they have gone unto those premises with the consent of the owner and that, by use of this microphone, they had overheard the conversations which were spelled out in the affidavit on which the search warrant was issued.

    William J. Brennan, Jr.:

    Mr. Williams, is that a custom made or an assembly line?

    Edward Bennett Williams:

    I hope it’s not an assembly line article, Mr. Justice Brennan, but it is an article which has some widespread use at the present time by federal law enforcement agents.

    Potter Stewart:

    Was the affidavit which supporting the search warrant, does that affidavit appear in the record here?

    Edward Bennett Williams:

    It does, sir.

    The affidavit appears in the record next to the motion for the return suppression of evidence.

    It appears, Mr. Justice Stewart, at page 12 of the record.

    Now, the stipulation entered into before the judge on the motion was to the effect that this device was —

    Felix Frankfurter:

    That is not the search warrant itself.

    That’s the descript —

    Edward Bennett Williams:

    That’s the effort —

    Felix Frankfurter:

    — that’s annexed — that was annexed to your motion for suppression.

    Edward Bennett Williams:

    And that was annexed, if the Court please, to the original application for a search warrant made by the officers who applied for it.

    That was the affidavit on which the search warrant was issued by the United States Commissioner on April 30, 1958.

    We annexed it as an exhibit to our moving papers because we were making the constitutional argument.

    It was further stipulated that this was inserted below the baseboard for a distance of six or seven inches into the party wall of petitioners’ dwelling house and that it was the means by which the conversations were overheard.

    Judge Holtzoff denied the motion for return and suppression and I think it is germane here to read just a sentence of his opinion or two.

    He said, “By permission of the owner,” and I’m reading from page 20 of the record, “police officers obtained entrance to a portion of the premises which adjoined the search premises, and attached an electronic device to the inside wall of the adjoining premises with a wire projecting six or eight inches into the party wall between the two houses.

    By means of this electronic device, the officers were able to overhear conversations that went on in the suspected premises.

    These conversations were made the basis of the affidavit in question.”

    And then, below on the same page, he gives us the reason for his denial of the motion before him.”

    The provisions of the Fourth Amendment relating to search and seizure are limited to physical searches and seizures of objects.

    This has been continuously held by the Supreme Court.

    Thus, in Olmstead against the United States, the Court laid down the general proposition that if evidence is obtained by use of sense of hearing and that only, and there is no entry into the house or office of the defendant, there is no unlawful search and seizure.”

    And, again at page 23, he says, “The state of the law today, so far as the Supreme Court decisions are concerned, is that the constitutional limitations on searches and seizures do not apply to conversations and are confined to physical invasion and to the seizure of physical objects.

    The Fourth Amendment does not ban eavesdropping.”

    If the Court please, by reason of a technical defect in the indictment, a superseding indictment was returned.

    The technical defect is not germane here but a superseding indictment was returned in five counts and the same motion was made.

    This time, it came on for hearing before Judge Youngdahl of the same court.

    Judge Youngdahl announced that he felt himself bound by the rule of the case.

    He did not hear argument on the motion and entered an order dismissing the motion.

    The case then came on for trial before Judge Jackson of the same court.

    The motion was once again renewed before the trial judge.

    He, feeling bound by the rule of the case, denied the motion and the case proceeded.

    At the trial, if the Court please, oral evidence of the conversations which were overheard, to which the petitioners were parties, the conversations which were overheard by means of this device were offered by the prosecutor and received into evidence against the petitioners.

    I think it is a fair statement of the record to say that these conversations constituted the bulk of the oral evidence given against the defendants in the court below.

    Felix Frankfurter:

    What significance that either Judge Holtzoff or the Court of Appeals attached to the consent given by the contiguous — the owner of the contiguous house?

    Edward Bennett Williams:

    They attached this significance that the officers were where they were by permission but, Mr. Justice Frankfurter, the record is bare that any permission or consent was ever given to use the party wall in the way in which it was used by the officers.

    Felix Frankfurter:

    I thought you read it awhile ago that one of the opinions stated that “with the consent of.”

    Edward Bennett Williams:

    It was with the consent that they entered the premises but there —

    Felix Frankfurter:

    But not sticking this thing in?

    Edward Bennett Williams:

    But not sticking this into the walls.

    Tom C. Clark:

    Are you saying it’s the same use of gadget like the suction type they stick into the wall?

    Edward Bennett Williams:

    The type of device that was used in the Goldman case, the detectaphone, I think so.

    And, I intend to cover that rather thoroughly, Mr. Justice Clark.

    I think it is distinguishable.

    William J. Brennan, Jr.:

    Well, weren’t there other means beside that this device Mr. Williams that he used in this instance?

    Edward Bennett Williams:

    This was — this was the only device used, except for the fact that one of the officers testified that he used a water glass and, by use of a water tumbler, was able to overhear some conversations.

    None of those conversations were ever articulated.

    None of those conversations ever went into evidence.

    It is significant that the only conversations that were received into evidence or offered by the Government were conversations which were specifically identified as having been obtained by the use of this device.

    Felix Frankfurter:

    Mr. Williams, may I revert to my question about consent?

    Edward Bennett Williams:

    Yes, sir.

    Felix Frankfurter:

    Not indicating whether it does or doesn’t have significance to the other questions, but if consent was given to enter and was it known that these were enforcing officers?

    Edward Bennett Williams:

    I’m — it was known that they were enforcement —

    Felix Frankfurter:

    Well, I don’t suppose it takes much of the slide to say that if consent was given to officers to come into the house, did that kind lenders the consent to do what they were coming in for?

    Edward Bennett Williams:

    Of course, it also follows —

    Felix Frankfurter:

    I’m not saying if that matters.

    Edward Bennett Williams:

    I think it also follows that the owner of the contiguous dwelling house could not consent to allow the police officers to do something which he could not have done himself, and I think —

    Felix Frankfurter:

    I’m going onto the significance but, so far as any consent is relevant in the relevant item in the equation, the total equation, I should think the consent of entry would carry with it what they entered for.

    Edward Bennett Williams:

    Which would be an unauthorized consent.

    Felix Frankfurter:

    I’m not —

    Edward Bennett Williams:

    If it went that far.

    Felix Frankfurter:

    Not to his part of this war.

    Edward Bennett Williams:

    I think it would have been, sir.

    I —

    Felix Frankfurter:

    It would’ve been —

    Edward Bennett Williams:

    Yes.

    It would’ve been certainly an unauthorized consent because he would not have had authority to misuse a party wall which is designed to give his house support and to secure his privacy, auditory and visual, to invade the privacy of his neighbor.

    Felix Frankfurter:

    Well, I’m not suggesting the consent — there was consent for them consequently, but there was consent to the physical thing that was done on his half.

    I suppose a man could fiddle around so long as he doesn’t undermine the — the existence of the next house —

    Edward Bennett Williams:

    Well —

    Felix Frankfurter:

    — this part of the house —

    Edward Bennett Williams:

    There’s —

    Felix Frankfurter:

    — further.

    Tom C. Clark:

    How thick was the wall (Inaudible)

    Edward Bennett Williams:

    The — the record shows, Mr. Justice Clark, that it was between 13 and 14 inches thick.

    Tom C. Clark:

    (Inaudible)

    Edward Bennett Williams:

    Yes, sir.

    Now, at the trial, these facts were developed.

    The officers had gone onto the premises at 410 21st Street.

    They took this device and they probed underneath the baseboard to find a place where they could insert it.

    They found that they hit masonry or brick and that they could not insert it except at one place, two-feet back from the front wall, for a distance of nine inches.

    And there, they could insert it and went into the wall until it came into contact with a surface which the officer said gave meaning that it was resilient.

    Now, the record shows that, at this particular point, the heating duct of petitioner’s premises ran through the wall.

    Brick was channeled out so that the duct could run through the wall and directly behind where the officers were inserting this microphone was the heating register for the petitioner’s premises.

    They lay the tip of this needle against the heating duct and they converted the heating system into a giant conductor of sound.

    They made every register in the premises at 408 21st Street a microphone so that as the record shows, they were able to hear conversations in every part of the dwelling house at 408 21st Street.

    And, in order to reach that heating duck which they suspected they were heating, they had to go in for a distance of seven and one eighths inches.

    An inspection of the premises, after the fact, showed that sure enough, there was an oval indentation under the baseboard which precisely fitted this needle and, if the needle were pressed through to its point of contact, it came into contact in direct line with a perforation in the heating duct of the petitioner’s premises.

    John M. Harlan II:

    Does the record show what information, if any, of these officers had before they got permission to go into 408?

    Edward Bennett Williams:

    It shows, Mr. Justice Harlan, that they did not know before they went on those premises where precisely the heating duct was located.

    John M. Harlan II:

    I know.

    I meant, today, with any evidence to indicate that they had suspicion a gambling operation was being conducted next to the farm — next to the house.

    Edward Bennett Williams:

    The record shows that the affidavit on which they — which they used to get the search warrant shows that they had anonymous information or they had information from what they described as a reliable source, otherwise unidentified, and went on the premises after finding that several telephones had been leased to this particular house, and then made their observations.

    Yes, sir?

    Charles E. Whittaker:

    Was this a hot-air heating?

    Edward Bennett Williams:

    This was a hot-air heating system, yes, sir.

    [Laughter]

    Now, the defendants, of course, were convicted and the case went to the Circuit Court on appeal and, there, by a 2-to-1 decision, there was an affirmation.

    I think it is worthwhile to call the Court’s attention, at page 269 to — of the record, to Judge Washington’s analysis of the facts.

    This is uncontradicted.

    Edward Bennett Williams:

    The majority does not analyze the facts and this is an uncontradicted analysis of what the record shows and, I should say, uncontradicted form.

    The police gained entrance quite legally to the row house next to that occupied by appellants.

    They then carefully probe the brick wall between the two houses in search of an advantageous spot for the insertion of their eavesdropping device, a needle or spike about 12 inches long connected to an amplifying duct.

    The testimony indicated that the spike, in order to serve its purpose adequately, had to come into contact with a solid object capable of resonance.

    Mere insertion in the plaster or brick of the wall would be ineffective.

    The desired sound reception was obtained by inserting the spike about seven inches into the party wall under the baseboard at a point where the wall contained the metal heating duct for appellants’ house.

    The heating duct was an excellent vibrator and, furthermore, ran into the bedroom as well as the living room of appellants’ house.

    Every inference in what little direct evidence there was pointed to the fact that the spike made contact with the heating duct, as the police admittedly hoped it would.

    Once the spike touched the heating duct, the duct became in effect a giant microphone running through the entire house occupied by appellants.

    The spike was the conductor by which the sounds in appellants’ house were transmitted to the amplifier in the adjoining house.

    Conversations on both floors of appellants’ house were clearly heard by the police through earphones attached to the amplifier.

    Motion was filed in the Circuit Court for a rehearing en banc.

    This was denied and, finally a petition was filed here and granted.

    Now, four times in the last three decades, this Court has considered what I think can be described as closely analogous facts and a closely analogous question.

    In 1928, this Court decided the famous case of Olmsted against the United States.

    The Court will recall that in that case the contention was made by the petitioner that the interception of his telephone conversations and the reception of those conversations in evidence by the trial judge violated his rights under the Fourth Amendment.

    The Supreme Court of the United States rejected that contention by a vote of 5-to-4.

    Mr. Justice Holmes, Mr. Justice Brandeis, Mr. Justice Butler and Stone dissented.

    In almost with unerring prophecy, three decades ago, Mr. Justice Brandeis foresaw the factual situation in the case at bar.

    When he said time works changes, it brings into existence new conditions and purposes.Subtler and more far-reaching means of invading privacy have become available to the Government.

    Discovery and invention had made it possible for the Government, by means far more effective than stretching upon their Act to obtain disclosure in court of what is whispered in the closet.

    In the application of a constitution, our contemplation cannot be only of what has been but of what may be.

    “Ways may someday be developed,” says Mr. Justice Brandeis in his opinion, “by which the Government will be enabled to expose to a jury the most intimate occurrences of the home.”

    14 years went by and there came before this Court the Goldman case in 1942, decided shortly after World War II began.

    In that case, the petitioner claimed and complained that a detectaphone had been planted against the wall of a contiguous office and that agents of the Federal Government had listened to his conversations in the next office and that this evidence had been offered against him and that this was violative of the Fourth Amendment and that this case was distinguishable from the Olmsted case because of the fact that he did not foresee that such an intrusion into his privacy could take place because he was not projecting his voice over the telephone beyond his office but having a private conversation with a man in a room.

    The Court, by a vote of 5-to-3, rejected his contention with Mr. Justice Murphy dissenting and Mr. Justice Frankfurter joined with Mr. Justice Stone articulating the fact that if the majority of the Court had seen fit to overrule Olmsted, they would go along but, since the Court did not, Olmsted was controlling.

    Now, the philosophical rational behind these cases, I think, is fair to say was that the Court felt that the penumbra of the Fourth Amendment did not cover conversations.

    It did not cover things other than material, physical, tangible entities.

    But in that case, there was articulated in the dissent with, what I think was irrefutable logic by Mr. Justice Murphy, these sentiments.

    It’s a strange doctrine that keeps inviolate the most mundane observations entrusted to the permanence of paper but allows the revelations of thoughts uttered within the sanctity of private quarters thoughts, perhaps too intimate to be set down even in a secret diary, or, indeed, utterances about which the common law drew the cloak of privilege the most confidential relations between husband and wife, client-lawyer, patient-physician, penitent and spiritual adviser nor can I see any rational basis for denying to the modern means of communication the same protection that is extended by the amendment to seal letters in the mails.

    Edward Bennett Williams:

    Again, it was 10 years before a comparable situation came to the Court.

    In the On Lee case, decided in 1952, this Court had to consider whether a violation of petitioners’ Fourth Amendment rights took place when an informer went on to petitioners’ business premises, engaged him in a conversation incriminatory in nature, all the while having concealed on his person a radio transmitter which was carrying this conversation to a federal agent who had secreted himself beyond petitioners’ premises.

    The Court, by a vote of 5-to-4, rejected petitioners’ contentions.

    The place was a public place to which the informer was invited and one of the parties in that instance had consented to the transmission of the conversation.

    But, it is very significant that in the brief filed by the United States by the Solicitor General, he sought even at that early stage, almost a decade ago, to distinguish that case from a case such as the one that is presently before the Court when he said, in his brief, the various situations envisaged in the dissenting opinion in the Second Circuit where mechanical contrivances are used to publicize conversations within a private home are unrelated to the instant case.

    As has been observed here, a private home is not here involved.

    The conversation transpired in a place to which the public was invited.

    In any event, science should in the future, perfect instruments which seriously invade truly private conversations, the validity of such developments may be considered as they appeared.

    Felix Frankfurter:

    I’m always interested when counsel resort to some statement in the prior brief by counsel.

    What is it, is it a theory of estoppel?

    After all, counsel want to win the case before them.

    Edward Bennett Williams:

    No —

    Felix Frankfurter:

    I should think you’ve done it again and again.

    Edward Bennett Williams:

    The theory here, Mr. Justice Frankfurter, is to give a demonstration, I think, of the foresight of the Solicitor General in envisaging a situation that might come before this Court, such as the one in the case at bar, and to demonstrate that he foresaw that that was clearly distinguishable from the case which he was then arguing.

    Felix Frankfurter:

    I think if you’re going to get — put a — call a — put a cradle, the Solicitor General wrote a bridge for his name so that the presence of the Solicitor General doesn’t come into the —

    Edward Bennett Williams:

    Well, I —

    Felix Frankfurter:

    — character conditions to foresight his predecessor.

    Edward Bennett Williams:

    I’m sure that the Court is aware of the fact that it was not the present Solicitor General.

    I did not quote him critically.

    I quoted it as an intelligent observation of what might one day be before this Court.

    Felix Frankfurter:

    These are just little private things, but I’m constantly — I hear this constantly from lawyers —

    Edward Bennett Williams:

    Yes, sir.

    Felix Frankfurter:

    — pull out a brief from a prior case —

    Edward Bennett Williams:

    Yes, sir.

    Felix Frankfurter:

    — and a great deal of extra line, I don’t know what they do with their law.

    Edward Bennett Williams:

    I did not intend to do it with a great deal of a (Inaudible) Mr. Justice Frankfurter.

    In the following case, two years later, where this same factual situation was treated by the Court, Irvine against the State of California.

    We had a flagrant situation.

    A situation where officers of the State of California had gained access to the petitioners’ dwelling house by use of a skeleton key, board a hole in his roof, listened to conversations which took place within his house and which were transmitted to a garage where the agents of the State of California had secreted themselves.

    This Court found that this conduct was violative of the petitioners’ rights under the Fourth Amendment.

    Edward Bennett Williams:

    This was articulated in a majority opinion and it was articulated in the dissents, but the majority of this Court was unwilling to impose upon the State of California the federal exclusionary rule on evidence illegally obtained.

    But, the case is significant here because it’s demonstrative of the fact that, contrary to the finding of the lower court in this instance, conversations are within the comprehension and purview of the Fourth Amendment protections, and I think that it’s a fair statement to say that this Court was far more concerned with the calculated, long, invasion of the privacy of the petitioner in that case than they were over the momentary trespass upon his physical premises.

    Now, what is the Government say about all this?

    The Government doesn’t contend, as I understand their position, that private conversations are not within the protection of the Fourth Amendment.

    The Government, rather, says, “There’s no trespass in this case.”

    That’s the thrust of their position.

    To that, we say there is a trespass in this case, number one, but, number two, that it is no longer necessary that there’d be an old common law trespass before there is a violation of rights under the Fourth Amendment.

    On trespass, the record shows, number one, that this device was inserted into a party wall against the heating duct designed to service petitioners’ premises and petitioners’ premises alone.

    The record shows that it was inserted seven and an eighths inches before it came into contract — contact with the back of the register of the petitioners’ dwelling house.

    Felix Frankfurter:

    Was the exact length of the party wall established on the (Inaudible)

    Edward Bennett Williams:

    The record shows that it was between 13 and 14 inches, and that’s the best that any witness was able to do for us.

    Felix Frankfurter:

    Nobody said beyond 14, did they?

    Edward Bennett Williams:

    No one said it was beyond 14.

    Felix Frankfurter:

    We’ll have a seven and an eighth will be more than half of those —

    Edward Bennett Williams:

    It would be an eighth of an inch more —

    Felix Frankfurter:

    — it would be an eighth of the —

    Edward Bennett Williams:

    — more than half.

    Felix Frankfurter:

    — the trespass, to the extent of eighth — one eighth of an inch, wasn’t it?

    Edward Bennett Williams:

    I —

    Felix Frankfurter:

    (Voice Overlap) on the basis of the record.

    Edward Bennett Williams:

    I think it was a trespass far and excess of one-eighth of an inch.

    Felix Frankfurter:

    (Voice Overlap) —

    Edward Bennett Williams:

    I don’t like to measure it in terms of eighth of inches in this instance.

    Felix Frankfurter:

    Well, but wouldn’t that be one-eighth anyhow?

    Edward Bennett Williams:

    If you adopt the Government’s theory —

    Felix Frankfurter:

    But any —

    Edward Bennett Williams:

    — that this wall was owned as a tenancy by severalty and that each owned one-half and could do whatever he chose with his one-half, including remove the bricks, I suppose that it was a trespass only in one-eighth of an inch, yes, sir.

    Felix Frankfurter:

    Well, one-eighth exempt for your purposes, wasn’t it?

    Edward Bennett Williams:

    I don’t —

    Felix Frankfurter:

    The purpose of trespass, I mean.

    Edward Bennett Williams:

    It would be an eighth of an inch on that theory, but —

    Felix Frankfurter:

    Or is that de minimis?

    Is that de minimis?

    Edward Bennett Williams:

    There was a de minimis, I think, when it came into contact with the heating register of the petitioners’ dwelling house and converted the heating system into a sound conductor system, Mr. Justice.

    William J. Brennan, Jr.:

    Did he say, Mr. Williams, it was evident — evidence in the perforation of the heating registry?

    Edward Bennett Williams:

    Yes, sir.

    That was found on inspection some time after the facts that were developed in this case, yes, sir.

    Felix Frankfurter:

    Do you tell a fellow who’s stupid about these things how could it come in contact with the heating register unless it got beyond the eighth inch — one-eighth of an inch?

    Edward Bennett Williams:

    I’m not sure I understand the thrust of your question.

    The heating —

    Felix Frankfurter:

    That may merely show that I’m ignorant, not that you don’t understand.

    Edward Bennett Williams:

    The heating duct was inside the wall.

    Felix Frankfurter:

    Yes.

    Edward Bennett Williams:

    It was — the bricks were channeled out so that the duct —

    Felix Frankfurter:

    Doesn’t the heating duct of — of the petitioners’ house go to the half of the contiguous house?

    Edward Bennett Williams:

    It did not because it necess —

    Felix Frankfurter:

    Well, then, it must have been an entirely on the — on the petitioner’s premises.

    Edward Bennett Williams:

    It was sir, because of a seven and eighth —

    Felix Frankfurter:

    There must have been — then, the contact must have shown, in it of itself, some trespass if the —

    Edward Bennett Williams:

    That’s —

    Felix Frankfurter:

    If the heating duct wasn’t on the — on the house from which they were operating, it must have been on the other house and, therefore, the other house couldn’t have been the contiguous house.

    Isn’t that true?

    Edward Bennett Williams:

    I — I think that it’s entirely correct to say that it shows as trespass when they came into contact with the heating duct, which were peculiarly designed for 408 21st Street, yes, sir.

    Charles E. Whittaker:

    But you don’t contend, as I understand it, Mr. Williams, that the heating duct was entirely on the south half of the wall.

    Your theory is that the whole wall was a part of the premises left to the defendants, isn’t that it?

    Edward Bennett Williams:

    My theory is this, Mr. Justice Whittaker.

    That a party wall is no more or less than a joint investment by contiguous owners in support and privacy and that if the party wall is abused or if its purpose is aborted by either party, either by invading into the support or invading into the privacy of his neighbor, then there is a trespass.

    All walls have, as I understand it, three functions.

    One is for support, one is for security against intrusion by animals and elements and strangers, and the third is for privacy, auditory and visual privacy.

    Now, a party wall has, for its purpose, support and auditory and visual privacy.

    Edward Bennett Williams:

    And, when one owner uses the party wall to invade the privacy of his contiguous owner by inserting a device of this kind, I say there is a trespass because if the Government’s contention is true, if the Government’s contention is true, it means that the Fourth Amendment gives no protection — auditory protection to persons who live in row houses, tenement houses, apartment houses, or rooming houses.

    The Fourth Amendment would then protect only those persons who lived in private dwelling houses, the walls of which were self-sustaining and wholly apart from other walls.

    It would mean that in multi-family dwelling units, in order to be absolutely certain that one was having a private conversation, it would be necessary to adjourn to a room insulated in tinfoil, a windowless, heatless room and hold conversations where a device of this kind could not penetrate.

    I don’t think that the Fourth Amendment can be construed to extend its protection solely to those persons who live only in self-standing, individual, private dwelling houses which do not have any party walls.

    Felix Frankfurter:

    What your — your argument — this argument challenges the foundation of Olmsted, namely, that there is no search unless there is really a physical entry — an unallowed physical entry into the premises from which you get information.

    Edward Bennett Williams:

    It does —

    Felix Frankfurter:

    Isn’t that true?

    Edward Bennett Williams:

    It does challenge that, Mr. Justice Frankfurter, because I —

    Felix Frankfurter:

    I know, but that’s what it amounts to, your challenge.

    Edward Bennett Williams:

    I — I don’t believe that — I don’t believe that constitutional rights should be contingent upon the preservation of the scientific status quo.

    I don’t believe that.

    And, in our brief, we show that, in the past decade, and we show it through illusion to the Senate subcommittee on constitutional rights hearings and their reports to the Senate, of which I believe this Court can take judicial notice, that today, parabolic microphones have been developed which are able to extricate sound from a room 50 yards away.

    Shotgun microphones can extricate sound from a room 50 yards away.

    Sonic beams can flood a room today 100 yards away and the conversations therein contained can be extricated, and that the only possibility of insulating one’s self from that kind of an invasion is to use some form of aluminum that will resist this kind of wave and use a windowless, heatless room, or a window which is made up of conducting glass.

    Now, I believe that, as Mr. Chief Justice Marshall said, constitutions, more than any other form of human institution, should approach immortality and that, in their application, the contemplation should be not what was but what may be.

    And I think that today, with the advances of science, that the only way in which the Fourth Amendment can guarantee the protection and the right to be let alone, which it was designed to guarantee, is to eliminate from the law, the old common law concept of tort trespasses because, otherwise, it becomes a mere nugatory —

    John M. Harlan II:

    On that —

    Edward Bennett Williams:

    — barren right.

    John M. Harlan II:

    On that view, the sticking of this gadget into the wall becomes immaterial in that view.

    Edward Bennett Williams:

    Yes sir, and that’s what I said at the outset, Mr. Justice Harlan.

    I believe there was a trespass here, but I would hope that when this Court decides the case that it would find the existence of a trespass is not the turning factor.

    John M. Harlan II:

    Well, — well, carried to the full extreme, is this an overstatement of your position that the Fourth Amendment prohibits the use of any electronics device in investigatory rights? Is that an overstatement of your position?

    Edward Bennett Williams:

    Yes, that is an overstatement of my position.

    John M. Harlan II:

    Well —

    Edward Bennett Williams:

    I — I say that it — I believe that the Fourth Amendment should guaran —

    John M. Harlan II:

    An electronic device that can protrude itself by sound effect or any other method into the inside of a person’s house.

    Edward Bennett Williams:

    I believe that the Fourth Amendment, in the frame of reference scientifically in which we are now treating it here today, if it is to give what it was intended to give, must protect one in his private family dwelling house from the kind of invasion that can, today, be affected by the use of electronic devices in lifting the sound from the room and transmitting it to places where the con — the persons engaged in the conversation have no reason to believe that it is being transmitted.

    Yes, I believe that, sir.

    John M. Harlan II:

    Well, one aspect of your argument is for us to overrule Olmsted.

    Edward Bennett Williams:

    I — I hope the Court will do that but —

    John M. Harlan II:

    And it is necessary in your —

    Edward Bennett Williams:

    It is necessary to do that —

    John M. Harlan II:

    In your broad approach —

    Edward Bennett Williams:

    Yes, sir.

    John M. Harlan II:

    In your broad argument, that is a constant, isn’t it?

    Felix Frankfurter:

    It’s necessary to overrule Olmsted.

    Edward Bennett Williams:

    Yes, sir.

    John M. Harlan II:

    Necessary to overrule Olmsted.

    Edward Bennett Williams:

    Yes, sir.

    It is sir.

    But it is —

    Felix Frankfurter:

    Now, you’re talking —

    John M. Harlan II:

    It is the premise of —

    Edward Bennett Williams:

    I have to say to you, Mr. Justice Frankfurter, it is not necessary to overrule — overrule Olmsted to reverse this case.

    I would hope that, in reversing this case, it would overrule Olmsted but this is distinguishable because, here, there is a trespass even within the comprehension of Goldman and Olmsted.

    In the — in the Olmsted case, they had physical contact with a wire, but the wire was much removed from the premises occupied by Olmsted.

    It was a — a telephone wire in the basement of a large apartment house, not in his unit.

    Felix Frankfurter:

    In answer to Justice Harlan, you were concerned merely with the ear.

    What about the eye?

    What about visual?

    If I may take your figure of speech, because you talk about invasion is a figure of speech, what about visual ascertaining?

    Edward Bennett Williams:

    I think if science should devise a means but —

    Felix Frankfurter:

    Well, I though that — let’s speculate because I’m certainly I’m no good at it, but with a telescope you can see things that you can’t see with the naked eye.

    What about using a telescope to look into the rule across the street?

    Edward Bennett Williams:

    I think that —

    Felix Frankfurter:

    I mean one has to know where you go in (Voice Overlap) —

    Edward Bennett Williams:

    Yes, that’s right.

    If — if a device were such as a — did for auditory — for visual — the visual sense, what this device did for the auditory sense, penetrated a wall like an x-ray machine, I would say it was a violation of the Fourth Amendment.

    If it was simply a telescope, by which one looked across a street and looked into a window which the occupant could reasonably foresee, might be used in this way because he didn’t pull the shade, then I would have — have trouble with that because I think that it’s — where a — a telescope is used and someone wants to protect and insulate himself from being seen, he could pull the shade, but there’s no way to insulate one’s self from this device except to go through the — the process which I outlined a few moments ago for the Court, which I think is a wholly unreasonable thing to expect a citizen to do in order to converse privately in his dwelling house today.

    Felix Frankfurter:

    Well, are you then suggesting that, in determining these things, we should consider to what extent you can isolate yourself against outside of contrusion?

    Edward Bennett Williams:

    I certainly think that is one factor which goes into —

    Felix Frankfurter:

    The people who’ve got nice traits —

    Edward Bennett Williams:

    The evaluation of this question.

    Felix Frankfurter:

    The people who’ve got nice traits are protected but the people who just have poor, cheap curtains on, is that it?

    Edward Bennett Williams:

    I — I don’t think that anyone, no matter how humble his dwelling house, cannot get privacy from visual invasion if he — if he wants to do it, sir.

    I don’t think that is a factor.

    Felix Frankfurter:

    What do you mean it might prove telescope that it might get visual penetration in the means that are effective for the eye as they are for the ear.

    Edward Bennett Williams:

    I — I think that I could insulate myself from your television — from your telescope regardless of what kind of a tenement I lived in.

    Yes, sir.

    Felix Frankfurter:

    But not — but not a thing that may well be now on the market or surely will be, whereby it can penetrate the shade that you pull down.

    Edward Bennett Williams:

    If it can penetrate a wall, then I say that it’s a violation because I cannot, within reason, protect my privacy as against it.

    This — yes, sir.

    Felix Frankfurter:

    Anyhow, that’s not this case.

    Edward Bennett Williams:

    That’s not this case, no, sir.

    Potter Stewart:

    Mr. Williams, coming back to this case and to the — to the question of whether or not there was a physical common law trespass, you told us that the owners show that the insertion of this spike was seven and an eighth inches and by — I mean in the testimony, there was, therefore, at least a trespass of an eighth of an inch.

    But, now, the fact is, isn’t it, that the evidence is in controversy on that issue and isn’t there a finding by Judge Holtzoff that there was no trespass, was no physical trespass?

    Edward Bennett Williams:

    Well, he found — he found two things.

    Potter Stewart:

    Why don’t you read it that way?

    Edward Bennett Williams:

    He found two things.

    He found, on the one hand, that there was an insertion from six to eight inches but he said that, de minimis non curat lex, that he was not going to hang constitutional rights or liberties on a fraction of an inch and that he felt constrained to follow Olmsted and Goldman which he interpreted as holding as not protecting conversations within a dwelling house but only protecting touchable, tangible, material, physical things.

    This is what I read Judge Holtzoff is saying.

    John M. Harlan II:

    Could I ask you a question.

    Edward Bennett Williams:

    Yes, sir.

    John M. Harlan II:

    Taking your theory for a moment in its broadest application, would you draw any distinction between a case where the agents were just interested in snooping generally to see what they can pick up and a case where they directed their snooping to an activity where, independently of the snooping, they had reason to believe something crooked was going on?

    Edward Bennett Williams:

    Well, I have trouble with the word “snooping,” Mr. Justice Harlan.

    If you mean —

    John M. Harlan II:

    Well, I —

    Edward Bennett Williams:

    — snooping by this device.

    John M. Harlan II:

    I mean, electronic

    Edward Bennett Williams:

    I would say —

    John M. Harlan II:

    — snooping.

    Edward Bennett Williams:

    I would say it didn’t — wouldn’t make any difference what the fact was because I would think that if federal officers are going to use this type of device to extricate sound from private dwelling houses, it certainly ought to be, if this were possible, with the support of a warrant issued by a court, but I gravely doubt whether a warrant would ever issue for this kind of thing because, obviously, this is an evidentiary search and warrants, as I understand them, are not issued for evidentiary searches.

    They’re only issued for getting contraband or getting —

    John M. Harlan II:

    Well, you —

    Edward Bennett Williams:

    Fruits of crime or instruments of crime, so that, I don’t think —

    John M. Harlan II:

    You have a —

    Edward Bennett Williams:

    — this kind of device would ever be authorized by a search warrant.

    John M. Harlan II:

    Well, you —

    Edward Bennett Williams:

    And, I certainly think it should not be used without a search warrant if a search warrant would never lie for it.

    John M. Harlan II:

    Yes, but how about procedure, like you have in New York telephone wires where you go to a judge and get permission to tap it.

    Edward Bennett Williams:

    I believe that that is an entirely illegal and invalid procedure.

    John M. Harlan II:

    Not in New York.

    Edward Bennett Williams:

    I think it’s invalid and illegal in New York.

    I think that the Federal Government has preempted this feel —

    John M. Harlan II:

    Well, that’s a different —

    Edward Bennett Williams:

    And that New York is —

    John M. Harlan II:

    That’s a different question.

    Edward Bennett Williams:

    — is a — New York law enforcement officers violate the federal statute every time they do that, Mr. Justice Harlan.

    John M. Harlan II:

    That’s a different question.

    Edward Bennett Williams:

    I’m sorry?

    John M. Harlan II:

    That’s a different question.

    Felix Frankfurter:

    But I think you have to meet Justice Harlan’s question beyond the answer that you gave because, as you suggest, Congress tomorrow might provide for authorization for a search warrant.

    And, there, it was a problem with the constitutionality of such law (Inaudible) authorization.

    Just go beyond —

    Edward Bennett Williams:

    Well, then, I suppose the question —

    Felix Frankfurter:

    Saying that on the present — under the present authorization of search warrants, a search warrant wouldn’t be issued.

    Edward Bennett Williams:

    The question would then be whether this Court wanted to extend the traditional concept of the purpose for which warrants of search or issue, as I understand it, in all Anglo-Saxon jurisprudence.

    Never have I known a court which authorized the issuance of a warrant of search solely for the securing of evidentiary material.

    Felix Frankfurter:

    Well, if it isn’t a violation of the Fourth Amendment, then it isn’t a question of choice for this Court that Congress passes the statute to authorize it, so that you will go back upon the proper construction of the Fourth Amendment —

    Edward Bennett Williams:

    Yes sir.

    Felix Frankfurter:

    Not if this Court wants or doesn’t want.

    Edward Bennett Williams:

    That’s right, but the Congress —

    Felix Frankfurter:

    You’re not in the — in the (Inaudible)

    Edward Bennett Williams:

    The Congress has not seen fit to authorize this form of law enforcement insofar as I know the use of electronic eavesdropping for purposes of hearing private conversations in dwelling houses.

    Now, if the Court please —

    Felix Frankfurter:

    But it’s — but if your argument is that this falls by virtue of the Fourth Amendment, is that right?

    Is that your argument?

    Edward Bennett Williams:

    My argument is that it falls by virtue of the Fourth Amendment, by virtue of the Fifth Amendment and that, in any event, this Court in the exercise of its supervisory power over the administration of justice in the lower courts, ought to outlaw the reception of this kind of evidence.

    Felix Frankfurter:

    Do you argue that it falls under the Fourth Amendment?

    Edward Bennett Williams:

    Yes, sir.

    Felix Frankfurter:

    And, one — one consents — on amendment is enough in order to try this.

    Edward Bennett Williams:

    That’s right.

    Felix Frankfurter:

    If that is true, then how do you differentiate the case put by Justice Harlan, whether have an issue of the warrant for snooping purposes or merely for confirmatory of cumulative evidence? Why do you make a distinction?

    Edward Bennett Williams:

    I make this distinction for this reason, Mr. Justice Frankfurter.

    As I understand, the Fourth Amendment guaranteed the right of the people to be secure in their homes against unreasonable searches and seizures, but a necessary qualification of that right was that warrants might issue on probable cause to conduct a reasonable search and seizure.

    But historically, as I understand the origin of the Fourth Amendment and the decisions under it, warrants of search issued in common law solely for contraband, fruits of crime, and instruments of crime.

    And, I think that when the founding fathers wrote the Fourth Amendment into the American Bill of Rights, it was in this frame of reference and they never intended that officers of the law should be given ingress into the home of private citizens so that they could fair about in a search for evidence of crime.

    I don’t believe that, and so I say that if the Congress should pass such an Act authorizing warrants to issue or this kind of a search, that there would be a grave constitutional question which would be presented to this Court, notwithstanding the existence of the statute.

    This is my belief, Mr. Justice Frankfurter.

    Felix Frankfurter:

    Well, if that’s your view, then the short answer to Justice Harlan’s question, if I may say so, in your point of view is that if Congress couldn’t authorize it, it couldn’t be done without authorization.

    Edward Bennett Williams:

    It’s —

    Felix Frankfurter:

    I think for snooping for — concerning snooping or whatnot.

    Edward Bennett Williams:

    I think it’s just the same as the fellow who lived in 410 21st Street.

    He couldn’t authorize going into that wall because he couldn’t have done it himself.

    I feel that the two questions are analogous.

    I — I say — and my time is running, but I say to the Court that it’s my belief that, traditionally, in Anglo-Saxon jurisprudence, we have always held the axiom that a man’s house is his castled.

    It was articulated, I suppose, most eloquently by Mr. William Pitt as the Earl of Chatham.

    Felix Frankfurter:

    You could save same time and not to go —

    Edward Bennett Williams:

    When he —

    Felix Frankfurter:

    You have to — you go there —

    Edward Bennett Williams:

    I don’t intend to.

    Felix Frankfurter:

    If you — if you will —

    Edward Bennett Williams:

    But I —

    Felix Frankfurter:

    — take that time and deal with the question of McNabb because you’ve raised that.

    You said, a minute ago, even if you — even if this is not a — there’s no constitutional barrier, you can invoke.

    The supervisory power of this Court, do you mind saying something about that in your remaining time?

    Edward Bennett Williams:

    Yes, sir.

    As Your Honor is very well familiar with, in the McNabb case, this Court decided that, notwithstanding the fact that there had not been a constitutional violation of McNabb’s rights by the illegal detention and by the reception in evidence of what otherwise was a wholly voluntary confession that this Court felt, in the exercise of its powers over the administration of justice over the lower courts, that it should exclude this kind of evidence.

    I suppose, and I don’t know, that the philosophical rationale behind this was that this Court has forever found upon the tenant that the end justifies the means in the administration of criminal justice.

    And when a confession was obtained as the result of an illicit means, namely, the illicit detention of Petitioner McNabb, this Court was unwilling to allow the Government to enjoy the fruits of that illicit act and, therefore, invoke the federal exclusionary rule to strike it down and I feel that the case at bar is an appropriate case for the invocation of that rule.

    For these reasons, I respectfully request that the Court reverse the judgment in the case at bar for the reasons which I have outlined during my argument that it was a violation of the Fourth Amendment or alternatively, the Fifth or in the exercise of its supervisory power that this is the kind of evidence that should be excluded from a federal courtroom in this land.

    Thank you.

    Earl Warren:

    Mr. Davis.

    John F . Davis:

    Mr. Chief Justice, may it please the Court.

    I shall not attempt to defend as proper police action the use of such science fiction devices as Mr. Williams would describe.

    I do not know whether it’s possible for police officers to send, race into houses, and to find out what is going on as they drive down the streets.

    But whether it is possible or not, that is not the case before us and I think we have enough with this — with this device which we have.

    This — this is actually a rather simple hearing aid.

    Basically, it cons —

    William J. Brennan, Jr.:

    You call it a hearing aid?

    John F . Davis:

    I call it a hearing aid.

    [Laughter]

    Potter Stewart:

    And you miss another day on that.

    John F . Davis:

    I — I’ll come back to that in a minute.

    It consists of a microphone, which is this gadget here, with a sharp spike attached to it to conduct sounds.

    This is itself not electric.

    It’s mechanical that conduct sound waves that are picked up by the spike to the microphone.

    This device here has got a battery in it which is still live.

    I tested it.

    And —

    William J. Brennan, Jr.:

    What are those things, Mr. Davis?

    John F . Davis:

    These are switches.

    There’s an —

    William J. Brennan, Jr.:

    Who makes that whole device?

    John F . Davis:

    I do not know who makes it.

    I —

    William J. Brennan, Jr.:

    Can I buy —

    John F . Davis:

    They are obtainable —

    William J. Brennan, Jr.:

    Can I go into a hardware store and buy one?

    John F . Davis:

    I don’t think — I don’t think so.

    There are, however — they are — there are other copies exactly like this.

    I see a device exactly like this —

    Felix Frankfurter:

    But is it necessarily —

    John F . Davis:

    So, I think it’s been assembled as a unit by somebody.

    Felix Frankfurter:

    Well, is it necessarily usable only for illicit purposes or purposes which you wouldn’t defend? I don’t —

    John F . Davis:

    I am defending the use that it is making.

    Felix Frankfurter:

    So I mean you are legally defending it what they’re used for.

    I thought —

    John F . Davis:

    I think this has no use except as a device to — to snoop with.

    Felix Frankfurter:

    Who — but —

    John F . Davis:

    The parts may have, but not this device as put together.

    Felix Frankfurter:

    But why couldn’t I use it in the large house just the way they use them in intra-telephones?

    John F . Davis:

    Well, I don’t think — you might try it, Your Honor, perhaps to hear a baby moving in the next room or something like that.

    It could be used–

    William J. Brennan, Jr.:

    There are better devices than that.

    John F . Davis:

    It could be used for that.

    [Laughter]

    Felix Frankfurter:

    But you said you are defending it.

    John F . Davis:

    I am defending it, yes.

    Felix Frankfurter:

    Well, please free me up.

    Felix Frankfurter:

    You started out what — what was your opening sentence?

    John F . Davis:

    That I didn’t want to defend science fiction devices but I’m willing to defend hearing aids.

    [Laughter]

    Felix Frankfurter:

    I thought you —

    Earl Warren:

    Well, this was science fiction just a few years ago, was —

    John F . Davis:

    No, I think not, Mr. Chief Justice.

    Earl Warren:

    Like my —

    John F . Davis:

    I think that — I think not.

    I think this is — no — no real development, scientifically over the device used in Goldman, and I was about to describe the nature of it so you could see that —

    Earl Warren:

    How about Olmsted?

    John F . Davis:

    Olmsted, well, no.

    Earl Warren:

    But —

    John F . Davis:

    No, no.

    Earl Warren:

    This was —

    John F . Davis:

    No.

    Earl Warren:

    Science — science fiction in my day, wasn’t it?

    John F . Davis:

    I don’t think so.

    They had microphones then as they do now.

    I don’t know that they had the spike attached.

    I think that that’s probably not invention to put a spike on it.

    Hugo L. Black:

    What’s the difference between that system and the telephone system as this worked?

    John F . Davis:

    There isn’t any basic difference than this.

    This has got the microphone which you speak into in the telephone.

    I don’t know if it’s a crystal microphone or a carbon microphone.

    I just don’t know.

    But it — and it’s — this — this device here is the electric power pack with a — with a little battery in it that amplifies the sound so it could be heard in the — in the earphones.

    It’s not like radar.

    This doesn’t bounce waves off from anything that comes back to anybody.

    This is just a — a microphone which is made more sensitive to sounds which come to it by the insertion of the spike in it.

    Tom C. Clark:

    Where are the earphones attached?

    John F . Davis:

    The earphones come from a wire — that comes from the power pack —

    Tom C. Clark:

    Over here.

    John F . Davis:

    To the — it’s all — there are three units that connect together by wire.

    I think the use of this device in the present case illustrates both its use and its limitations.

    The officers in their apartment next door to the gambling headquarters could, without the use of any aids whatsoever, hear what was going on in the next room.

    There’s evidence in this case at page 68, part of the evidence in the trial, that they heard gambling transactions without the use of any device, at the very bottom of page 68, “In the afternoon about 2:45, I entered the premises and was able to overhear Mr. Martin and Mr. Schwartz quoting the yards in the baseball game.”

    “On that date, the 29th, you did not use any electronic device.”

    “No, sir.

    I just had my ear to the wall.”

    This was evidence in this case.

    So, they could hear but they couldn’t hear very well.

    There were things that — that they missed.

    So, they aided their hearing somewhat by taking an ordinary water glass, a tumbler, and they put it against the wall and they listen to the bottom end of this glass.

    This way, they could hear better.

    With this device which they pushed underneath the — the baseboard into a crack which exited there, the evidence is clear that this wasn’t — no structural damage change was made in the wall.

    There was an aperture and this was merely pushed in by the man’s thumbs.

    It wasn’t hammered in.

    There was no change made in the party wall.

    That was pushed under the — under the — the baseboard and, with this, they could hear very well because we find that the evidence in this case is overwhelmingly specific that these particular defendants were engaged in violation of law.

    Now, the petitioner does not claim that this spike went inside of the Defendant’s room in the sense that it penetrated the wall and came through.

    There was a question whether it penetrated the duct.

    William J. Brennan, Jr.:

    Well, it wouldn’t because this isn’t long enough to penetrate a 14-inch wall, isn’t it?

    John F . Davis:

    No, it isn’t, and it didn’t.

    And, there’s no claim that it did.

    There is —

    William J. Brennan, Jr.:

    (Inaudible)

    Physically, it couldn’t.

    John F . Davis:

    No, it couldn’t.

    Then, the question was asked whether it penetrated the rear and the back of the heating duct.

    Now, in the first place, the evidence is — it’s not admitted that this ever touched the heating duct.

    John F . Davis:

    Witnesses for the defendant claimed that it had been pressed in at a place where it touched the heating duct and it made small indentations, not perforations, but indentations on the back of that duct.

    This is evidence solely by the defendants’ witnesses.

    It’s not the Government’s — governance evidence was that it would not have gone far enough to touch that duct even if it had been in a line with the duct.

    Earl Warren:

    What did it touch in the — according to the testimony of the Government?

    John F . Davis:

    It touched some unidentified obstruction in the wall, something —

    Earl Warren:

    Was there something —

    John F . Davis:

    (Inaudible)

    Earl Warren:

    Was there something that was resonant?

    John F . Davis:

    Well, I don’t know if that was resonant or not.

    It was something which enabled them to hear through the — through the earphones.

    It was something which conducted sound, if that’s what you mean by resonant.

    Earl Warren:

    The Government’s testimonies say it did not touch the — the heating duct.

    John F . Davis:

    The Government’s testimony didn’t say it didn’t but if the Government’s — it would be impossible for it to touch the heating duct if the Government’s testimony is taken as accurate because the Government’s testimony of the three persons who were present when this was inserted would have had it inserted about five and then — five and an eighth inches.

    Earl Warren:

    Did they measure it?

    John F . Davis:

    The — well, they didn’t measure it but they were — each one of them testified how far that it had gone in and Mr. Williams cross-examined one of the witnesses and had him mark off on just how far it was and it was measured then from the best of his — best of his knowledge, and that’s at page 102 and 103.

    And it shows that it was much less than — that it was less than six inches when it was inserted.

    So, if this evidence is belived, it couldn’t have — and the evidence as to heating duct is believed, he couldn’t touch because it wouldn’t go far enough.

    I may say that I think the burden of proof on their being an illegal intrusion is on the — on the petitioner in a case like this because he’s got the heavy burden of showing the evidence shouldn’t be introduced.

    And, the truth of the matter is —

    Earl Warren:

    May I ask you, what — what did that strike in — according to your theory?

    John F . Davis:

    We do not know what it struck.

    We could not see in it all we know, the evidence — all the evidence says is that it struck some object in the wall which gave.

    William J. Brennan, Jr.:

    And, in order to work, as I understand it, is this so Mr. Davis, it had to strike something?

    John F . Davis:

    Well, the evidence which the defendant put in said that it had to come up against a sounding board and —

    William J. Brennan, Jr.:

    Did the Government —

    John F . Davis:

    — the Government said it could be hear better if it was against something that served as a sounding board.

    Felix Frankfurter:

    And wouldn’t something have to be in the petitioner’s part of the house?

    John F . Davis:

    No, no, not necessarily.

    Any — any device where the — that would vibrate to the sound to the voices.

    The voices came right through the —

    Felix Frankfurter:

    The wall.

    John F . Davis:

    — the wall that could have been put entirely against the baseboard if the — if the sound waves would hit the — the officers’ ears as they sat inside, it would hit the baseboard and if — presumably could’ve picked it up just by putting the point of it against the baseboard.

    Earl Warren:

    Suppose they drilled right into the wall and inserted at the — the distance that you say the Government testimony showed, would — would there be any — any effectiveness to the instrument?

    John F . Davis:

    I wouldn’t have been in — I don’t know whether it would be effect — there would be effectiveness to the instrument because sound waves were conducted through this wall and, presumably, this would have amplified them somewhat.

    I mean en — when the closer contact you’d get with any part of the wall, I would think, would — would improve it.

    Felix Frankfurter:

    Is that —

    Does that mean that —

    Earl Warren:

    No, go ahead.

    Felix Frankfurter:

    Does that mean that if it was just been inserted one inch in the neighboring house, the sound — the sound would have been amplified to the —

    John F . Davis:

    It would have been amplified somewhat, Your Honor, whether —

    William J. Brennan, Jr.:

    Well, I know, but would it have been amp — is there evidence that it would have been amplified to the degree it was heard as easily as it was?

    John F . Davis:

    No, there’s no such evidence.

    All I have —

    William J. Brennan, Jr.:

    But was there any evidence of the —

    John F . Davis:

    Well, there is evidence —

    William J. Brennan, Jr.:

    — the degree to which it would have been amplified?

    John F . Davis:

    There is evidence, Your Honor, that these people could hear these sounds sitting in the next room without any device, which is evidence.

    Not — maybe the —

    William J. Brennan, Jr.:

    Well, anyone who has lived in an apartment knows —

    John F . Davis:

    Yes.

    William J. Brennan, Jr.:

    — who’s going to hear sounds from the —

    John F . Davis:

    So that, any —

    William J. Brennan, Jr.:

    adjoining apartment, but —

    John F . Davis:

    If this is so —

    William J. Brennan, Jr.:

    You can’t hear the conversation.

    John F . Davis:

    If this is so, the sound waves are coming through into this room so that they didn’t have to — in order to reach this microphone and amplify it, it would not — I mean, we can — there’s no evidence to this effect, but it’s — it’s obvious that when you got a microphone with a device like this that you could pick it up inside the —

    William J. Brennan, Jr.:

    Well, what I’m trying to get is was there evidence that all they needed to do was to touch that point against the wall and this would have permitted amplification?

    John F . Davis:

    There is no — there is no testimony to that effect.

    I say it can be — can be drawn from the evidence which is in there.

    Felix Frankfurter:

    You could have say that — you could have said that to the extent to which amplification is made for the — the sounds are more distinguished and one hears it from across house to house or, across apartment to apartment.

    Felix Frankfurter:

    At least, clearly you would say that’s outside the scope of all the people.

    John F . Davis:

    That’s right.

    I — I would say that this was merely hearing more carefully.

    I mean, if — if they got a man — if — if they had a man with unusually acute hearing that they took along with them to listen because they couldn’t hear, this would be a similar — a similar thing.

    This is a device which enable the — I — I want to say that I find this device not entirely satisfactory to amplify sounds —

    William J. Brennan, Jr.:

    Have you tried it?

    John F . Davis:

    I have tried it.

    I have the detective from the police department bring one up to my office and I tried it in the office.

    I couldn’t tell —

    William J. Brennan, Jr.:

    Well, they’re government walls though, aren’t they?

    [Laughter]

    John F . Davis:

    Well, I tried it underneath the doors.

    I couldn’t tell whether Mr. Spritzer was talking to the Solicitor General or his wife.

    I just [Laughter] couldn’t tell it.

    Felix Frankfurter:

    You seem to have a kind of fun with this instrument.

    [Laughs]

    Tom C. Clark:

    Can you turn up the power like you would with a little radio?

    John F . Davis:

    This one has a low and a high power.

    The one I had was a little different.

    It had a knob on it.

    It didn’t — it didn’t make it any better.

    I think that it would be —

    William J. Brennan, Jr.:

    Well, how — how far did you insert it in Mr. Spritzer’s wall?

    [Laughter]

    John F . Davis:

    Well, I stuck it under the door because the — our baseboards weren’t up enough.

    Maybe — I don’t know that it was a bad test and there’s no evidence.

    William J. Brennan, Jr.:

    You probably didn’t get it again in the heating ducts.

    [Laughter]

    John F . Davis:

    Mr. Justice, this isn’t — is a — is an exhibit in the case and, in all seriousness, I think that this exhibit should be examined by the individual — any members of the court that are interested in it because I think that this case should not be decided on some theory that we have here an infernal instrument such as are well describes which is going to enable people to penetrate into other people’s privacy beyond a certain extent, and I think you ought to know the particular device which we have here.

    And, as I say it’s an exhibit —

    Earl Warren:

    Well, what’s the purpose of the spike if it isn’t to penetrate?

    John F . Davis:

    It is.

    It’s to — it’s to increase the efficiency of this microphone.

    It’s to get to something and to conduct the sound from it to the microphone.

    Felix Frankfurter:

    Well, the suggestion — the suggestion of your admonition to the Court or your helpless suggestion to the Court is that we ought not to outlaw cruel things but merely very refined instruments.

    John F . Davis:

    Well, no.

    You ought not to change — what I mean is you ought not to change the law on the theory that there are some superb race that people are going to use to — to penetrate to the very depths of our houses until that — until there is such a thing.

    I don’t know if there is or not.

    The references to the — to the Senate Committee hearings are — are interesting.

    There — there is testimony on these — on these gadgets.

    People got up and talked about them.

    I don’t think that proves that — what they’ll do, but there is — there is testimony of these things in the future.

    Felix Frankfurter:

    Well, one wouldn’t be borrowing sublet when assumed that there’ll be improvements on these things that their legitimate does, does one?

    John F . Davis:

    Well, there has been.

    As far as I know, no one has had any hesitation about using microphones since Goldman’s day and, if this is as much as they can do since Goldman, I think we’re fairly safe for some time to come.

    Now, let’s talk about this hitting the — the heating duct and the — and the heating system in the apartment becoming a gigantic microphone.

    In the first place, the testimony does not establish that it hit the heating duct.

    It may have, it may not.

    We don’t know what it hit.

    If the Government’s testimony is correct, it didn’t go far enough to hit the heating duct.

    If it did hit the heating duct and if the heating system became a gigantic microphone, the only things that were heard in the next room were from the room next door where the gambling operations were taking place and, in one case, it was heard partly by ear and partly with this machine in the stairway, in the entryway where people came in downstairs, just as they came in — in the house.

    Felix Frankfurter:

    Anything heard from the second floor?

    John F . Davis:

    Yes, well, the gambling premises were on the second floor.

    This was on the second floor.

    This is called a dwelling house and it is a dwelling house in a sense that it’s made for people to live in, but no one was living in it.

    It was — this was used solely as a gambling headquarters at the time of this — of this operation.

    Earl Warren:

    Was there anything in the test — testimony offered by the Government to the effect that only the conversation in one room could be heard through this?

    John F . Davis:

    No, no.

    If in fact —

    Earl Warren:

    You think that (Voice Overlap) —

    John F . Davis:

    — it’s clear that it could be heard in the stairway in the hall where people came in as well as that one room, but that is the extent of the testimony.

    Earl Warren:

    They — they — do they contend that it could not be heard in all the rooms of the house?

    John F . Davis:

    Well, there’s no evidence one way or the other on that.

    I don’t know whether it could be heard in the other rooms or not.

    Felix Frankfurter:

    Did the noises come from the room into which or toward which the spike was projected or from the room above?

    John F . Davis:

    From the — it came to the room directly opposite, the room where the spike was inserted except, as I say, for one instance where a man came in and knocked on the door and the agents could hear him come into the house and could hear him speak.

    And in that case, he wasn’t in the room and they could hear that one conversation, and that is the —

    Felix Frankfurter:

    What length of time did the — did the overheard conversations take place?

    John F . Davis:

    Well, it took place on a series of days.I think there were three or four days.

    What would happen is that the agents, and these agents were Internal Revenue agents and the Metropolitan police, would enter this house around noon or little before noon and the defendants in this case would come in around — I think, early in the afternoon and they would conduct their betting operations for that day’s ballgames and the prize fights that night throughout the afternoon into the evening.

    And so, the agents would be there eight hours from noon until 8, 10 o’clock.

    Felix Frankfurter:

    Was the recordings that were made of the overheard conversation voluminous?

    John F . Davis:

    There were no recordings made.

    Felix Frankfurter:

    Well, I mean or recollection, were they voluminous?

    John F . Davis:

    There were — there were many, yes.

    There were — the — the testimony in the case shows not four or five bets being placed, but hundreds of bets being placed that were heard.

    I mean, they didn’t attempt to give them all.

    They — they gave the testimony as 10 or 15 on this day and 10 or 15, but it’s quite apparent they heard hundreds of bets being placed.

    Felix Frankfurter:

    And the agents relied solely on their memory for what they heard?

    John F . Davis:

    No, they had notes that were made in which —

    Felix Frankfurter:

    Well, were the notes voluminous?

    John F . Davis:

    I — I don’t know.

    I really don’t know.

    Hugo L. Black:

    Mr. Davis —

    Tom C. Clark:

    (Voice Overlap) it’s your room — there were persons in the other rooms you have?

    John F . Davis:

    Were there persons in the other rooms?

    There’s no evidence that anyone went anywhere, but this single room that was used as a betting headquarters.

    Tom C. Clark:

    Did it conduct a raid after this?

    John F . Davis:

    Yes, on the basis of this — on the basis of the evidence which was obtained — on the basis of what was overheard, they got the search warrant and arrest warrant, and they —

    Tom C. Clark:

    Did they find anybody in any other rooms there?

    John F . Davis:

    Well, one of the people they picked up is he left the building.

    The other — another person was in the — in the gambling room.

    No one was in any other room at the time they went in.

    Hugo L. Black:

    Mr. Davis, you referred us to page 68 with reference to testimony of conversations that were overheard before this contrivance was put in the wall?

    John F . Davis:

    No, not before but without the aid of this contrivance.

    This, actually, was heard on the 29th and — and the contrivance had been used in the 22nd, 23rd and 24th as I recall.

    Hugo L. Black:

    Was there any effort — does the evidence show any effort to give before the contrivance was put in the wall?

    John F . Davis:

    The evidence —

    Hugo L. Black:

    Or was it put in — I just don’t understand quite the sequence of events.

    John F . Davis:

    No.

    They — they did go into the — into the building first, the place where they had permission to go, 410.

    They went in without the device, and I think the evidence is that they felt that they could hear something next door.

    They didn’t have the device.

    They went in early in, as I remembered early in April, maybe March, to find out what was going on and they’ve heard sounds.

    They didn’t hear any illegal transactions.

    They’ve got no evidence at that time, but it was after they had been in that they then got the electronic device and listened, as I remember it.

    Earl Warren:

    Mr. Davis, I’ve been wondering if there’s nothing in the evidence to show that this spike hit — hit the heating apparatus or nothing in the evidence to show that they could hear through it, but many part of the building.

    Where did — where did Judge Washington get his —

    John F . Davis:

    I —

    Earl Warren:

    — his information —

    John F . Davis:

    I —

    Earl Warren:

    — to the effect that this created or established a giant microphone?

    John F . Davis:

    I am — I may have misspoken.

    I didn’t mean there was no evidence.

    The defendant’s evidence was that this struck and pushed against the microphone and the defendant brought in experts who said you could hear all through the building.

    Earl Warren:

    And you say there was no evidence on the part of the Government contrary to that?

    John F . Davis:

    No, Mr. Chief Justice.

    I’d say, if the evidence in the part of the Government is to be given credence, it could not have touched the heating duct.

    They didn’t — there was no occasion when the Government witnesses were on the stand to testify as to the heating duct.

    But, it’s impossible with the description of how far it goes into the wall for this spike to have touched the heating duct if the Government’s witnesses are to be believed because they said it only went in five and one-eighth inches and it — that’s not far enough to touch the heating duct.

    Earl Warren:

    What would have it touched if he didn’t touch that?

    John F . Davis:

    It could have touched a log, for example, the —

    Earl Warren:

    The what?

    John F . Davis:

    A log, a — a board, a piece of — a strip in the wall, it could have touched — I don’t know.

    Any number of things could be involved.

    Earl Warren:

    We’ll recess.