Media for Sugden et ux. v. United States
Number 555, Robert Sugden and Jean Sugden versus United States of America.
Mr. Chief Justice, may it please the Court.
This case involves substantially three questions, two of which are of substantive law and one procedural.
It maybe that the Court will not find it necessary to resolve all of them.
The first question involves the extent of the authority of the Federal Communications Commission to monitor communications via radio.
Involves the extent of their authority and the purpose for which they may monitor.
The second involves the effect of the failure of an operator of a radio station to have a temporary permit, to have an operator’s permit, which the Circuit Court deemed a perfunctory permit, one which issues as a matter of course.
The Circuit Court of Appeals held to the effect that the failure to have such an operator’s permit, freed the communication from the protection of Section 605 and that therefore the Government might employ communications intercepted while the operator’s permit was not, in effect, at a federal court freely and without limitation.
The third question and the one which I said was procedural involves the failure, the effect of the failure of the Government to separate out from the case which it hoped to present to the Federal Court, the evidence which the Circuit Court held to have been illegally acquired.
In other words, there were three interceptions in this case by the Federal Communications agents.
Two of those interceptions occurred during the time when the operator’s permit was not in effect and the third interception occurred after the operator’s permit was issued.
It was agreed by the United States Attorney that these three interceptions, the transcribed recordings of it were employed in soliciting witnesses, were employed before the federal grand jury which indicted and were employed and were proposed to be employed in the trial of the action in the question of witnesses.
The matter arose in this fashion.
The two defendants or the two appellants here, Robert Sugden and his wife Jean Sugden were indicted in the federal court at Phoenix from the charge of conspiracy to conceal wetbacks, to conceal immigrants illegally in the United States through the use of a radio, through installing a radio in their farm and employing the mobile units in the trucks, to warn people in the fields of the approach of the immigration officers.
There were a number of overt acts charged.
One of which significantly was laid on the18th of September.
The second indictment was an indictment against Robert Sugden alone who was alleged on — with some 17 counts of having illegally concealed wetbacks.
Prior to the cases coming on for trial, we seasonably moved to suppress all of the evidence which was secured through — at monitoring the radio station of the appellants, of the petitioners here.
The trial court held a hearing at which evidence was introduced substantially showing the following facts.
The Sugdens in early spring or summer of 1953 contacted the Motorola Company which this Court, of course, knows and which everyone knows is an outstanding manufacturer of electronic and radio equipment.
They were put in contact, came in contact with the representative of that company one, (Inaudible).
He was, to their knowledge an experienced and able person, well versed in all of the intricacies of radio installations and regulation of which these two persons knew nothing.
He was called upon to install the system for them.
He did install the system which consisted of a base station in the home, in the farm home and in mobile units in the various pickup trucks which were employed by petitioners in their farming business.
He undertook to get within the necessary station license and did get such a license.
He also assured them that he would take care of their operator’s permits and left them some forms with which to apply for those permits.
The station was installed in August and they started operating it along about that time.
The evidence showed on the preliminary hearing that on September 9, the Sugdens raid application for their operator’s permit.
This was sent back to them because they failed to put a check mark on the back of the application or on one of the forms in the application.
And accordingly, they have to resend it in and the permit was issued September 17th.
The testimony on the hearing was to the effect from Mrs. Sugden that to her best recollection they were ceded on the 17th.
Mr. Stratton who was the agent of the Federal Communications Commission who did the monitoring or was in charge of it and testified — testified that he examined the Sugden installation on the 18th of September and he did not make any statement that the operator’s permit was then not in possession.
In other words, the Government for the first time in its reply brief here would raise some question as to whether or not, in fact the operator’s permits were issued on the 18th but we take the position and I think justifiably so that it was in effect conceded in the District Court that the permits were issued on the 18th.
The fact that Stratton, the agent went over the installation, made a report and did not claim that the permits were not in hand at that time, seems to us to rather or differently justify the conclusion that they did in fact have the permits at that time.
But there was no place on his report where he said it had been or had not been.
No, Your Honor, Mr. —
Was this the place for him to make an answer?
Mr. Sugden testified that he recalled when the station license came that there were some language with it to the effect that operator’s permits had been obtained or would be obtained.
The testimony of Mr. Pilling who was the technician in the Sheriffs office at Yuma and who testified before the Government was simply to the effect that he told Mrs. Sugden he couldn’t fill out the completion report until they got their operators permit.
Mrs. Sugden testified that she did not know they were required.
She testified that they relied entirely upon Mr. Bridges to advise them what to do.
The testimony was clear that Mr. Bridges was there when the station was in operation and he made no effort to warn them, to advise them not to operate it.
And Mr. Pilling, the technician from the sheriff’s office while he initially stated that he warned them not to operate it, he admitted on cross-examination that all he said was that he couldn’t fill out the completion reports until the operator’s permits had arrived.
So that, I think there is no question to what the operator’s permits were not in hand until the 17th.
I think there’s also no question in the record that the Sugdens were not warned that they require this type of a permit and I think there’s no question but from the record that must be concluded that their failure to get the permits had nothing to do with the claim of conspiracy.
Whether they had the permits or not, there were certain limitations weren’t they, on the uses to which the station could be put —
Yes, Your Honor.
— even after the permit.
The station — the permit for what is known as the industrial use, the application stated that it was to be used for the purpose of connection with farm pickups and in farming operations and incidentally farming plows which is rather unusual use to put a radio to.
In any event, it is true that the permit as issued was a limited permit and that it was intended for use in connection with the farming activities of petitioners here.
That is correct.
And that would not cover the warning of the wetback in the farming activity I think.
Well, Your Honor, I can answer that best by saying that probably it had a relation to the farming activities.
But if the Government’s position is correct that this radio was so used and we do not concede that for a moment but if we accept from the face of the record as we must, in this stage of the record anyway because we’re here faced only with the indictment which makes the charge.
The only way I can answer that would be to say that it had no legitimate employment in connection to the farming activities which undoubtedly was used in connection with it.
Now, the proof show, if I may go back for just a moment that the investigation by the Federal Communications Commission arose upon complaint by the immigration officers in the area.
The immigration officers apparently complained to the Justice Department, the Justice Department in turn complained to the Federal Communications Commission and the Commission in turn sent Mr. Stratton to the area.
He testified that the cause of his coming there was a complaint of the Department of Justice.
So I think that we may start out with our attempt to understand this problem at least on the supposition that it was a purposeful journey which Stratton made to Yuma area for the purpose of interception.
He did not need to go there to see if they have their operator’s permit.
That would have been shown by their own records.
He had no occasion to go there except because the immigration officials complained that someone was using a radio improperly.
And he went there to catch him.
That is the substance of it and he went there to catch him by interception of the communications by radio.
The evidence is clear that he checked in when he first got there with the immigration officials.
And that he promptly as he intercepted these communications reported to them.
And that by confidential letter or by confidential cover, copies of the transcription went forward to the immigration officials promptly after the interceptions.
On the fourth, he manually took down the messages as he intercepted them.
On the tenth of September, he returned with a companion and with a recording device and mechanically recorded the transcriptions which he made, and in turn turned over to the Department of Justice and to the immigration service.
And then again on the 18th, he returned with the companion and again transcribed the interceptions and forwarded them to the Department of Justice and to the immigration service.
And on the 18th, for the first time, he called on the Sugdens and went over their installation and made certain comments and left them a set of rules and regulations.
Now, if it please the Court, the — the Government’s first position is that under the Communications Act, the Government is freely permitted to monitor and hence being freely permitted to monitor, they are freely permitted if they come upon some criminal mischief have put to make use of it.
They attempt to present the case as if the sole thing involved here was a question of, can the Federal Communications Commission monitor?
We make no complaint — make no claim of course if they cannot monitor.
We do make the claim that the Federal Communications Act properly read, discloses no intent on the part of Congress to give to the Federal Communications Commission the authority which they here see, which is in effect to supervise every communication by radio whatever type or kind of communication that may be.
Now it is true that this is a particular type of a license but if the right inheres in the Federal Communications Commission to check these communications, then the right inheres in them to check all of it because the act makes no distinction as to this type of a license or that type of a license.
So that initially, we are faced with the claim of the Government that it has — of the Federal Communications Commission as asserted by the Government that it has general supervision over all communications by radio.
Now, that claim is made frankly and boldly in their brief.
They state that they are required because the radio spectrum is limited to in effect allocate to each user of it, to each licensee his (Inaudible) part of the time and then in addition to that they’re entitled to listen in on what he says to see if he is, in fact, saying more than he should say.
Do you claim that the reason for this monitoring was to catch them in this immigration violation?
Yes, Your Honor.
I noticed from the Government’s brief that they were also indicted for running a radio station without a license.
That is correct but it is our position, Your Honor, first, that the only fair implication from the record is that they came at the solicitation of the immigration people in connection with the claim immigration violation.
Secondly, in connection with their indictment for not having operator’s license, all they have to do is produce their own records.
All they had to do is go to the Sugden home, see the radio on operation and look at their own records and they had a case there with respect to the operator’s permit.
No question about that.
So that it is true that there were filed over — rather were returned on their presently pending certain indictments for violations of Communications Act.
But those, we respectfully submit, the record clearly says it was for side issues.
Those are incidental.
Those were simply by-products of the original purpose in going to Yuma.
Well — that — those cases are not here.
No, Your Honor.
Those cases were set for trial and have been vacated pending the determination of this cause.
But would the — would the Federal Communications Commission be entitled to cooperate with the immigration authorities for the purpose of preventing unauthorized radios from interfering with the immigration laws?
Your Honor, I do not think so.
I think that the Communications Act properly and carefully and fairly read, does not disclose any intent on the part of Congress that the Federal Communications Commission was to become an adjunct of every Bureau in the sense of becoming a law enforcement agency.
Now if I might just carry that metaphor just as we did.
The Government has taken the position in its reply brief and as far as we’re concerned, it is not a part of the record but, nonetheless, we’re perfectly happy to accept it because we think it demonstrates what we’re here to say.
In their reply brief, they trace the history of monitoring.
They say that it went back to 1920 — 1912, I believe and they bring it forward up to 1931 with the construction of a monitoring system.
And then they say that in 1931, when this system was or this central monitoring station was built that it become firmly in trenched as a part of the Communications Regulation by the then Radio Commission.
From that, we draw in the conclusion that it was then a part of the accepted practice that the Commission was to, was monitored.
For what purposes of course, we don’t know.
If that is a case of the police, the Commission then returned to the Communications Act and read it carefully.
We either have to decide that Congress didn’t know what they were dong, that Congress was — was — saying a lot of things that were completely apart from the public interest or that the Congress didn’t know that they were doing those things or didn’t intend that they should continue doing them in the sense of eavesdropping and tackling.
Now, the first provision which is of consequence in that respect is found in 150 — Section 154 of Title 47, subdivision (l).
All reports of investigations made by the Commission —
Is that in your brief?
No, Your Honor.
I didn’t find this while I was coming (Inaudible).
It is 154 (l).
All reports of investigations made by the Commission shall be entered a record and a copy there shall be furnished to the party who may have complained — to the party who may have complained and to any common carrier or licensee that may have been complained off.
Well, now, if it please the Court.
If the Congress at that time was cognizant of the fact that the radio monitoring services were then installed, were being constantly employed about the country and list all sorts of conversations and becoming aware of the fact of all sorts of criminal conspiracies afoot, of criminal mischief afoot, roam running, dope peddling, dope — transportation.
If they were aware of the fact that that was being done and they intended to authorize its continuance, wouldn’t have been the reasonable thing that they would have also had those reports go to the law enforcement officers?
If they didn’t regard, if the Congress didn’t regard that this monitoring was solely the physical, mechanical business of seeing a frequency — that’s a sign of seeing the power, was that a sign and so on, why then in this particular section did they not require that when they made an investigation and found some criminal activity afoot that they should bring that to the attention of the Attorney General or the proper law enforcement agencies.But they said nothing of that sort at all.
If we go on through the Act and turn to Section 303, I believe it is, which is the — the — Section which deals with the power of the Commission.
It seems to me that a — a complete answer is found to the contention of the Government.
This is cited in our brief.
I’m not going to read the whole thing because it is too long, I’m going to turn to the section thereof — which provides that it shall have authority to spend the license of any operator upon proofs sufficient to satisfy the Commission that the licensee then they set out certain infractions.
A, has violated any provision of any act, treaty or convention binding on the United States which the United States, which the Commission has authorized to administer or any regulation made by the Commission under any such act, treaty or convention.
Now mind you, if it pleases the Court, the Congress here limited solely the authority of the Commission to suspend or revoke a license where the Act violated was one which the Commission was in — was authorized to enforce.
If it had been the intent of the Congress that the Commission in this general monitoring practice which they say was so firmly and established, if it had been the intent of the Congress that it was the power, the right of the Commission to listen generally on all conversations and having this been — and having intercepted then to transmit the information and use it in Court.
Why did the Congress here say you can only suspend a license where the Act violated is one “any — a violation of any act, treaty or convention binding on the United States which the Commission is authorized to administer”.
Clearly there, the Congress had intended that the Federal Communications Commission was to become a super detective agency insofar as radio is concerned, would they not have authorized them to suspend the license, license of any station which was used in an illegal operation?
Would they not there has said any statute.
But no, the Congress there carefully, very precisely limited what statutes the Commission could suspend the license for the infraction thereof.
They go on —
Assuming that this was a bona fide monitoring —
Yes Your Honor.
— for the purpose of checking up on the use of the license which I have understand you recognized they had the right to do and then they stumble across some information that shows another crime.
You say they can’t use that?
I — I’ll say very frankly that that is the most troublesome question on the entire case.
I say that they cannot use it and I say it for the following reasons.
The Act does not contemplate that the monitoring which we’re talking about here is to be that of a general listening in on conversations.
The Congress gave in this authority, gave them the authority to inspect installations associated with radio stations to check the — to see if they were properly constructed, properly operated or properly controlled.
The language isn’t just right, but in any words, the Congress limited their authority to inspect radio installations.
Now the Government would take that language and blew it up into the proposition that they were entitled on the basis of that to do anything they want to insofar as radio is concerned but it is our position that when they say inspect radio installations, they could very well that they had wanted to go further and give them this general authority that we’re talking, have given them the authority to inspect communications made by radio or to otherwise broaden their authority.
But it is our position, Mr. Justice Harlan, that we do not find in the words, inspect, radio installations.
The general authority to become a super censorship so to speak or to create a super censorship overall communications.
To monitor, if it pleases the Court, does not necessarily mean, to listen in on conversations.
It does not necessarily mean that they’re to sit there with their ears glued to a microphone and listen to what the people are saying.
Monitoring is for the purpose of seeing if they’re on the assigned frequency, to see if their power requirements or their power output is proper and that sort of thing and to see if they’re on a — if they’re —
How can you monitor without listening?
Well, it please the Court, I — I don’t claim to be a radio expert but it is my understanding that if they monitor in the sense of finding out if they’re on the proper frequency, they don’t have to take down the conversation, they listen to the signal.
If they monitor for the purpose of seeing their power output, that, I don’t know.
But I don’t see any reason why they’re required to listen to the conversation unless as I have said before the Government —
Well, then and really your answer to my question is that while they have a right to monitor, if inadvertently they stumble across something, they can’t use it.
That is correct.
And I say that for this further reason, Your Honor.
Section 605 which is the section which of course is crucial here which this Court has passed upon numerous times in connection with telephone wire tapping originally was, of course, a part of the 27 Radio Act.
It came into telephones and telegraphs from radio.
It didn’t come into radio from telephones and telegraph.
This Court recognized that in one of the cases passing on that — I forgot in which one immediately but the fact remains that at the time when 605 was carried forward by the Congress into the 1934 Act that 605 was then left in its identical language, as I understand it, or substantially so as it had been before.
Now if we can see at that moment that the Congress knew that the monitoring practice widespread, knew that the people employing the monitoring were listening in and gathering conversations and intended that they should use those conversations in the sense of handing them on to a federal enforcement agency, they didn’t indicate that in the statute.
The statute, as the Court well knows, forbids first interception and divulsions.
In other words the Congress forbad not interception.
There’s no — there’s no — nothing in 605 that says they can’t intercept.
No, but the only thing that 605 prohibits is interception and divulsions.
Then to make doubly sure, the Congress went or the statute goes on and says that in addition to the prohibition against acceptance and divulsions, it also prohibits anyone who has obtained information that has been unlawfully intercepted from divulsion.
In other words, Congress first buttoned up so to speak and forbad interception and divulsions.
And then it took the next step which was of someone acquiring information that had been intercepted but not intercepting themselves and said, “You can’t disclose that either.”
Do you recognize some limitation upon that theory?Suppose they overhear a pop for immediate murderer or something that sort, can they use that to stop the murder or to warn the police and if there’s some limitation to it?
The statute does not prescribe any, Your Honor.
And let me say this if I may.
I have always understood that the function of a proviso in a statute, the function of a qualification, so to speak, was to eliminate from the full play of the statute some specific things and that — where there was such a proviso, the general construction is that there’s nothing else accepted.
Now mind you when 605 was reenacted, we had all this monitoring apparently going that they talk about.
We have the fact that they were listening in all over the country to what was going on, and the Congress knew that.
That’s the Government’s position.
Now what did they accept from the full swing of 605?
After they have laid out this prohibition, these prohibitions rather, they say provided that this section shall not apply to receiving, divulging, publishing, or utilizing the contents of any radio — radio communication, broadcast or transmitted by amateurs or others for the use of the general public or relating to shifts and distress.
What does that mean, for the use of the general public?
I assume it means, Mr. Justice Frankfurter, that if it’s broadcast for the use of the public, in other words, if it’s broadcasted and intended as public property like when you — you speak of a patent as being — becoming public ownership.
I think that is the understanding and the meaning of it and then they give us the one further exception and that is to shifts in distress.
(Inaudible) it is in the public domain to use your analogy.
That’s correct —
And you’re divulging.
Well it’s — there’s no purpose in — in protecting it because the center intended that it should be divulged.
It was in — it would be an implied consent to its divulgence.
Hugo L. Black:
One is a public program.
That’s correct, Your Honor.
Well that —
All radios more or less in the public domain isn’t it?
Pardon, Your Honor.
The radio and like telephone is more or less in the public domain to start with, isn’t it?
Well, if it pleases the Court, that is one argument which the Government makes.
That after all, he who broadcast in the use of radio —
It’s the same as standing (Inaudible)
But isn’t there a lot of — isn’t there.
I speak with the present monumental ignorance of the subject.
Isn’t there a good deal of radio communication between officials?
It doesn’t simply add to a lot of radio communication from headquarters which officially (Inaudible)
Your Honor, I’m also in that same domain —
That’s with —
I understand that that’s undoubtedly true that there is a substantial use of radio shortwave and high frequency in transmitting.
I’m sure that’s correct.
Well, I have no firsthand knowledge of it.
All sorts of suggestion — I suppose all sorts of communication statute (Inaudible) radio network and their correspondents, their (Inaudible) their reporters whatever they call them, communicators and (Inaudible) in regard to or rather interest in (Inaudible)
Well, I’m sure that’s correct, Your Honor.
The private circuits (Inaudible)
I have — I have that unfortunate experience, Your Honor, but our answer to that, if it please the Court, is that there’s all the more reason because of the easy accessibility of interception to radio to enforce the sanctions of 605.
In other words, the Government, in effect, argues he who takes a radio in his home or he who uses a radio telephone or — which is in effect what the radio is — he assumes the risk of the public picking it up and listening to it.
Well now, because it is easy to steal, is it better not to make stealing a crime?
It seems to me that the answer is that because of the fact that radio is so susceptible to interception, because of that, it’s all the more reason for accepting the full effect, an impact of 605 in saying, “Sure you — if you happen to listen and that’s fine, but you haven’t got any right to divulge.”
And I say that regardless of whether it’s easy or not, the facts are that the Congress has prohibited it.
The facts are that the Congress has said you shall not divulge it if you come across it and 605 plainly spells that out — plainly says there are two times when you can go behind 605 and that is one if its broadcast in the public domain, secondly, if it’s a shift in distress.
Now that’s —
What about the subpoenas in the local authority?
Hugo L. Black:
That was interpreted to you (Inaudible)
I was going to say, Your Honor, that I believe that it’s previously been — been answered by the Court.
I know that I haven’t concerned with it and I’m quite sure that either the first or second Nardone case is the one that — that passed on it and, in effect, answer Mr. Justice Reed’s question.
Well, Mr. Wilmer, I suppose 605 refers to license to broadcast, is there anything in the statute or in this legislative history that would limit the Federal Communications Commission in its supervision over — over the field to either intercept or divulge broadcast for many unlicensed and therefore illegal status?
Well, Your Honor, that was in effect, the view which the Circuit Court could.
I beg your pardon?
That was, in effect, the view which the Circuit Court took that —
— during the two interceptions when Jean Sugden does not have an operator’s permit, that the Government was free to intercept and divulge.
Our answer to that is this.
Had the failure on her part to have an operator’s permit, played any part in the so-called conspiracy.
It had been it — had it been in furtherance of the conspiracy.
Had it been a failure to obtain a permit which, in fact, involved the public revenues or had it been the type of a permit which in some fashion public policy was related.
There might be some basis for the attitude of the — of the Commission.
Well I’m not speaking of the guilt or innocence of these parties.
I understand sir.
I didn’t want to apply the testimony in the case to that question but, how would you answer that abstract question?
Well the answer in this fashion, Your Honor, that it would be my opinion, I believe —
I beg your pardon.
It would be my opinion for it’s worth to the Court that if the license — if the station was unlicensed as if there is one case that’s passed and this is the Court probably knows and that’s from the Ninth Circuit the case that’s cited in the brief here.
The Court will undoubtedly recall the circumstances when the people in Portland, I believe it was, decided to outsmart the bookies and use the shortwave radio to get the results of the race and then they puzzled in and lay the bet with the bookies before they found out how the race should come out.
It will result to a multiple large sums of money.
They were caught and prosecuted.
In that case, they had an unlicensed station which was operating on an unassigned frequency, in fact an SOS frequency, and in addition, they had no licenses and the whole failure to obtain a license was an integral part of the — of the criminal act.
I would feel under those circumstances that the — the protection of 605 would not apply but I also would feel that where you have a bonafide attempt to comply with the law, where you have an actual license issued to the station, where you have the station operating on its assigned frequency and where the only thing they can complain of is the fact that because this woman didn’t know any better because she relied upon the representative of a well known electrical firm because she — in good faith, went forward and used the radio that that does not constitute the type of conduct which should — should subject her to the loss of the protection afforded by this statute, nor does it justify an interpretation of the statute which would deny her that protection.
Now I grant you that I have to back up a little bit when I say that this proviso excludes everything that should be excluded from 605 when I make that admission.
Because manifestly, if I say that if it’s an illegal radio on an illegal frequency under an illegal operator, probably, it’s not protected.
That is in the statute either.
But I think that is a matter of not — of not interpretation of the statute but of general law that a person who is engaged in a criminal act and something in furtherance to that criminal act, is involved, then you deny the protection of the statute to it.
Hugo L. Black:
Does the act define amateurs?
Yes, I believe it does, Your Honor.
Hugo L. Black:
Do you have that definition in your —
The definitions are found in Section 153.
Hugo L. Black:
Do you have the definition of amateur?
There’s a definition of amateur station, Your Honor, subdivision (q).
Amateur station means a radio station operated by duly authorized persons, interest in a radio technique solely with a personal aim and without pecuniary interest.
Hugo L. Black:
What about amateur operators, did you find that?
I do not believe it does, Your Honor.
No, it does not, Your Honor.
It defines amateur station.
It does not define amateur operator.
Now if I might just —
We’ll recess now, Mr. Wilmer.