Evening star., 1928-01-29
DECISION ON OVERLAPPING"
EVIDENCE TO SET PRECEDENT
Supreme Court Will Hear Argument ON Admissi
bility of Telephone Conversations After Three
Years of Litigation.

letter Of the prohibition of ccnStitu.
tiouai provisions lt Is not disputed
that evidence obtained by the vision OF
one who sees through windows or open
doors OF q dwelling house Is admissible.
Nor has It been held that evidence OBJ
tanned by listening at doors or windows
Is inadmissible Evidence thus obtained
is not believed 70 be distirguishaole
from evidence obtained by listening In
on telephone wires"
In addition. both Federal and State
decisions were invoked 70 show that the
competency of evidence and not the
methods by which II was procured
should determine admisSibillty.
In disagreeing. however. Judge Rud-
kin handed down an opinion that was
severely at variance with the majority.
and In a principal contention he held
that q telephone message is as sacred
as the mails. whose inviolability has
been upheld by Supreme Court de-
cision. He incidentally paid his re-
speets 10 "the growing tendency 70
encroach upon and ignore constitu-
tional rights"
Exceptions TO Rule.
II do not think that testimony thus
agents Is admissible In any event. how.
ever the conversation may be proved. p"
he said. ''Of course. agree with the
majority that courts will not ordinarily
inquire into the manner In which q
witness gains his information. but there
are exceptions 70 the rule as we'll estab-
liShed as the rule itself For illustra-
ton ! need only refer 10 the many de-
ciSions of the Supreme Court. OF this
court and OF the courts Of other cir
cults excluding evidence obtained by
Federal ofieers and Federal agents In
raiding private dwellings without search
warrant. while the like evidence. OBJ
tanned In the like manner by private
individuals and by municipal and State
ofIicers. Is universally admitted Whether
this distinction Is founded In reason Is
not for me 10 say. Here We are
concerned with neither eavesdroppers
nor thieves. Nor are We concerned with
the acts of private individuals or the
acts Of municipal or state officers We
are concerned only with the acts Of
Federal agents whose powers are limited
ana controlled by the Constitution OF
the United States. II II 4 matter OF
common knowledge that the protection
Of the fourth and NTH amendments
to the Constitution has been invoked
more often and more successfully dur.
ing the past 10 years than during the
entire previous history Ut the republic
think II Is also matter OF common
knowledge that there Is growing
tendency 10 eneioaoh upon and ignore
the constitutional rights, For this there
Is no excuse
But whatever the tendency may DC
In the direction have indicated In
other quarters. fortunately the supreme
Court has set les face against II, That
court has consistently and persistentiy
declared that the amendments IN ques-
ton must be literally construed In favor
OF the citizen and his liberties, and that
stealthy eneroAchment viii not be col"
Grated, Nor are the guarantees can~
tanned In these amendments limited tn
houses and papers Their ehiet aim
and purpose Is not the protection "
property. but tho protection of the In
dividual III his liberty and In the prl,
vaeies of life, ="
As then quotes 4 Supreme Court de-
eislan delivered by Justice Field 10
guarantee the mail against unraason,
able search aud seixnte, ana adds;
"Ana II Is ths taasents OF tAa t5tke
tCfnttaWed aa Th,d rea~A