Tom C. Clark

“ In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.
It is said with fervor that electronic eavesdropping is a most important technique of law enforcement and that outlawing it will severely cripple crime detection. The monumental report of the President's Commission on Law Enforcement and Administration of Justice entitled "The Challenge of Crime in a Free Society" informs us that the majority of law enforcement officials say that this is especially true in the detection of organized crime. ”

“ Recently chief reliance in some offices has been placed on bugging, where the information is to be used in court. Law enforcement officials believe that the successes achieved in some parts of the State are attributable primarily to a combination of dedicated and competent personnel and adequate legal tools; and that the failure to do more in New York has resulted primarily from the failure to commit additional resources of time and men," rather than electronic devices. ”

“ Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices. Some may claim that without the use of such devices crime detection in certain areas may suffer some delays since eavesdropping is quicker, easier, and more certain. However, techniques and practices may well be developed that will operate just as speeil y and certainly and-what is more important-without attending illegality.
It is said that neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements. ”

“ This is left entirely in the discretion of the officer. Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits uncontested entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. ”

“ The Court refused to do so finding that the recording, although an invasion of the privacy protected by the Fourth Amendment, was admissible because of the authorization of the judges, based upon "a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice * * * for the narrow and particularized purpose of ascertaining the truth of the affidavit's allegations." ”

“ As science developed these detection techniques, law makers, sensing the resulting invasion of individual privacy, have provided some statutory protection for the public. Seven states, California, Illinois, Maryland, Massachusetts, Nevada, New York, and Oregon, prohibit surreptitious eavesdropping by mechanical or electronic device. [4] However, all save Illinois permit official courtordered eavesdropping. Some 36 states prohibit wiretapping. [5] But of these, 27 permit 'authorized' interception of some type. ”

“ United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) , the Court confirmed that it had "in the past sustained instances of "electronic eavesdropping" against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear. * * * It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area." ”

“ As with general warrants this leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. ”

“ Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control. A microphone concealed in a book, a lamp, or other unsuspected place in a room, or made into a fountain pen, tie clasp, lapel button, or cuff link increases the range of these powerful wireless transmitters to a half mile. ”

“ The States are under no greater restrictions. The Fourth Amendment does not make the "precincts of the home or the office * * * sanctuaries where the law can never reach," Douglas, J., dissenting in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 321, 87 S.Ct. 1642, 1657, 18 L.Ed.2d 782, but it does prescribe a constitutional standard that must be met before official invasion is permissible. Our concern with the statute here is whether its language permits a trespassory invasion of the home or office, by general warrant, contrary to the command of the Fourth Amendment. ”

“ Relevant portions of the recordings were received in evidence at the trial and were played to the jury, all over the objection of the petitioner. The parties have stipulated that the District Attorney 'had no information upon which to proceed to present a case to the Grand Jury, or on the basis of which to prosecute' the petitioner except by the use of the eavesdrop evidence.
Eavesdropping is an ancient practice which at common law was condemned as a nuisance. ”