John Marshall Harlan II,
Kaiser v. New York — Dissent
“ In Berger, the Court held that a 'bugging' pursuant to a § 813-a warrant violated the petitioner's Fourth Amendment rights because on its face the statute did not contain cons itutionally required safeguards. It is true that the 'bugging' in Berger involved a trespass and that the Court did not reach the question whether Olmstead should be overruled. But the holding that § 813-a was to be considered on its face rather than as applied depended in no way upon the fact of physical intrusion. The warrant procedure prescribed in § 813-a applies equally to 'bugging' and to wiretapping. ”
