John F . Davis: If the Court please. I want to say a word about what the record shows on whether or not there was a trespass in this case. Really hinges upon the same testimony which is involved in -- and we were discussing before lunch about how far the needle protruded into the wall. The evidence of the Government witnesses -- under the evidence of the Government witnesses, this would not have protruded beyond the middle line of the party wall. There is evidence of the police officers who had examined the plans of the house, as well as the rooms themselves that the walls were 13 to 14 inches thick and that includes trimming the baseboard and things. But -- so that we get a -- we get 13 or 14 inches and the question is whether -- if you're going to find out whether there's been a crossing of the standard line, it would presumably have to be between six and a half and -- and seven inches but this would've had to go into the wall.
William J. Brennan, Jr.: (Inaudible)
John F . Davis: He said six to eight in the -- in the introduction. He -- he -- that's right.
William J. Brennan, Jr.: (Inaudible)
John F . Davis: He said that it was a party wall and that the intrusion into the party wall, if there was a trespass, it was de minimis and that he wouldn't consider it a trespass.
William J. Brennan, Jr.: (Inaudible)
John F . Davis: No, he did not make --
William J. Brennan, Jr.: -- six to eight.
John F . Davis: His only statement was that that's right. It was six to eight. He made no finding that it didn't go any further than that.
Potter Stewart: How about the -- getting away for a moment from the facts of the -- of the trespass, how about the law of the District of Columbia as to party walls? Is it clear as to who owns what in a party wall?
John F . Davis: In a party -- yes, the principle cases that followed the case, which is cited in our brief, and District of Columbia law is, apparently, the same as the law in most of the jurisdictions in the United States that each party continues to own up to the division line, but he owes their cross-easements of support --
Potter Stewart: For support.
John F . Davis: -- mutual support for the -- for the others, so that you can't pull down. You owe -- you owe the other man a right to keep it there, to keep its post up.
Potter Stewart: But you have an undivided ownership in the wall up to the midpoint.
John F . Davis: Up to the center -- centerline. So that, under that law, if that -- and I think that is the law in the District -- the Fowler case, I would think, established it. If we did go beyond the centerline, there was an -- crossing over the -- into his property in that sense, I may say that I do not concede that the mere fact, if it were established that we crossed over the centerline, I don't think that establishes that there was an illegal search because, by and large, the law is that there has to be an intrusion inside the house, not a crossing over of a property line, not a trespass, but an intrusion into the -- breaking into the other person's house. I think the leading case on that is the Hester case, which Justice Holmes decided, in which there was an admitted trespass on the land of the -- of the defendant but this, itself, didn't make an illegal search since there was no breaking into -- into a house involved.
Felix Frankfurter: The point was just to the house.
John F . Davis: Pardon?
Felix Frankfurter: The point was that it wasn't the house, the home where people lived, in the Hester case, was that it?
John F . Davis: Well, there, they saw people come out of the house with jugs of -- of moonshine and --
Felix Frankfurter: Yes, but the point is that the protection is of --
John F . Davis: Of the house, that's right. But there has been --
Felix Frankfurter: (Voice Overlap) say as the party wall is part of the house, isn't it?
John F . Davis: Well, yes, but the question is --
Felix Frankfurter: That is not the problem.
John F . Davis: -- did he go inside -- inside the house. I mean, he wasn't where he -- he believes to be --
Felix Frankfurter: Well, I'm suggesting the Hester case, wasn't thinking about (Voice Overlap) --
John F . Davis: No, the Hester goes -- that is true. It didn't deal within -- the Agnello case is a case where they did go up on the porch and looked through a window but it isn't discussed in the -- in the opinion.
William J. Brennan, Jr.: Well, Mr. Davis, may I get back to this penetration. Don't we have to take in the finding of six to eight inches if there was a penetration, whatever the significance may be, more than halfway through the party wall.
John F . Davis: No, I think you have to take that there is no definite finding one way or the other because if it were six --
William J. Brennan, Jr.: Am I not right that most of the Government's witnesses put the penetration at less than six inches?
John F . Davis: That's right.
William J. Brennan, Jr.: And the defendants --
John F . Davis: But -- but -- excuse me, I didn't mean to interrupt but the Government's witnesses testified after Judge Holtzoff had made the -- after he'd made his finding. Their -- their testimony came in the trial itself and he was making this statement on the basis of statements by counsel in the argument before him and really stipulated facts before him. And, I --
William J. Brennan, Jr.: (Voice Overlap) --
John F . Davis: Well, yes, except that the United States Attorney didn't ever stipulate that it was six to eight inches. I mean -- but that was Judge Holtzoff's conclusions that he did --
William J. Brennan, Jr.: What -- what bothers me for -- if it should become critical in the decision of this case whether there was penetration more than halfway through, what are we to take as a fact?
John F . Davis: You'll have your choice of sending it back for reappraising of the evidence or reading the evidence as it is -- it is here and making your own determination because there is no determination by Judge Holtzoff and the Court of Appeals said there was evidence on which the judges might have determined that it didn't go halfway and that's all the Court of Appeals said on the thing. On the other hand, the dissenter in the Court of Appeals said that it went six to seven inches or something like that, I think.
Charles E. Whittaker: (Inaudible)
John F . Davis: No, because it -- it wouldn't have been submitted to the jury because the question of the legality of introduction of the evidence. This evidence was introduced before the jury but no -- no instructions were given and nothing was submitted to the jury.
Earl Warren: Mr. Davis, what does the evidence show as to how far it would have been necessary to insert that point, that spike, in order to reach the heating system?
John F . Davis: The heating system?
Earl Warren: Yes.
John F . Davis: Well, you can -- I guess, the only evidence would be on that, would be the depth of the duct and there's evidence -- the heating duct which is said to be -- well, the Government -- the Government witness wasn't very clear on it. Four to six inches. He said this metal duct itself was four to six inches. The defense gave more accurate or more precise, I don't know if it's more accurate but more precise testimony on the depth of it, and that appears towards the end of the record. I don't find it. I -- maybe I'll find it in a minute. But then, the only way to find out how far it would have to go would be to take that testimony of -- let's say -- let's take for the minute, six inches and it's --
Earl Warren: I beg your pardon?
John F . Davis: Let's assume that the metal duct was six inches deep and that it was one inch from the wall. Then, we would -- we'd know that it would take up about seven inches of the 14-inch wall. If it were less than -- here is the -- the testimony on the depth of the duct from the defendants' witnesses appears at pages 211 and 212. He says that the duct was four and nine-sixteenth inches from the wall. It went four and nine sixteenths. So, taking actually five, it would have taken seven inches to hit it.
Potter Stewart: This is four and ninth-sixteenth from the defendants' wall, is that it?
John F . Davis: That's right.
Potter Stewart: (Voice Overlap) --
John F . Davis: So, it would've -- if that would -- if that testimony is to be given credence and if it did hit the duct, then it would have to gone in about seven inches, at least, which would be about halfway.
Earl Warren: Well, now, I'm an -- I don't get that. I don't -- if those distances, if it's four and three quarters inches, four and three quarters inches from where?
John F . Davis: No. That -- the metal piece itself, the metal piece which runs from the pipe out into the room is four and three quarters inches. But, when you refer out to the wall and get the molding on, it -- it comes from the outside wall to the back of the duct. Looking at it from the point of view of the petitioners' side becomes five and nine-sixteenth inches, if these -- if these figures would be given complete credence. This is the defendants' testimony. So that, if this is so, it would have to be -- so, that's nearly -- that's five -- a little over five and one-half. It would need six -- it would need more than halfway to touch the duct. It would have had to have been inserted more than halfway to touch this duct. That's why the defendant introduced this testimony because he was tempting to show that it did go more than halfway. I may say that if we're going to take these measurements, we ought to examine them pretty carefully. Now, this becomes very technical and I -- and I don't want to rely on it but their testimony as to where the -- the heating entrance was into the room shows about 18 inches from the front wall of the house, and they say when they looked in there, they saw indentations on the metal about two inches, I think it is, from the end. So, this will put it about 18 inches from the front of the -- from the front wall of the house. On the other hand, when they go around to the other side, they say that the indentation where the spike was inserted was 18 inches from the front wall. Well, this will mean that the spike would not have gone in straight when they measured -- when they measured the distance, the spike would had gone in through the indentation to the -- in the shoe molding to the dent in the thing, it would go in at an angle and then measurement as to the distance, I think, may not be accurate. I -- these things are difficult to appraise and this Court ought not to be called on to make that kind of finding of fact, but --
Earl Warren: Well --
John F . Davis: -- if you want to go and analyze those facts, well, you want to bear that kind of thing in mind.
Earl Warren: Well, do you think -- do you think this case should turn on whether they were in there five and three quarter inches or six and three quarter inches? Would you want the -- would you want the conviction of this man to stand on which of those --
John F . Davis: No, I --
Earl Warren: -- since there were accurate?
John F . Davis: No, I -- I think this conviction -- the conviction of this man should stand in any event. I think we have a somewhat easier case. I think it falls much clear -- more clearly in line with Goldman if there was no trespass.I think -- I think we would. I think the --
Hugo L. Black: If there were no what?
John F . Davis: If there were no trespass, if there were no crossing over of the property line.
Earl Warren: And --
Hugo L. Black: Is that controlled by whether you think that's been (Inaudible)
John F . Davis: No, it's controlled on whether or not it went more than halfway through the wall.
Earl Warren: And -- and would you be willing to rest that on the Court's finding that they went in there somewhere between six and eight inches?
John F . Davis: No, I don't think that's really a finding of fact on the entire record because it was made before else by Jude Holtzoff on a preliminary hearing before the evidence was in and I don't think that that is determinative of -- how far it went.
Earl Warren: Isn't the matter -- isn't that the basis on which he made this finding?
John F . Davis: Well, he made the finding originally. It was renewed before Judge Jackson, both at the beginning of the testimony and, again, at the end of the Government's case after the evidence had been introduced and on the basis of all of the evidence. The Court then denied the motions to exclude it. So that, you have the preliminary finding by Judge Holtzoff just made on oral argument and then you have the more definitive decisions by Judge Jackson made on the evidence before him.
Earl Warren: He didn't take the -- he didn't take the finding of Judge Holtzoff --
John F . Davis: No, he heard all the evidence.
Earl Warren: The evidence --
John F . Davis: All the evidence in the case was introduced before him. I mean, all the evidence we have that we're giving on the distance that went in was introduced before Judge Jackson, and he made the determination on the motion on the basis of that evidence.
Earl Warren: There were no instructions on the subject.
John F . Davis: There were no instructions for the jury. He didn't leave it to the jury.
Tom C. Clark: Then Judge Holtzoff's conclusion go up on the penetration point?
John F . Davis: No, I think Judge Holtzoff felt that a party wall -- there'd be no trespass in going into a -- it was common. I think he felt there was common ownership of the -- best way I read his opinion that there was ownership of the party wall, and I think that is not -- the property concepts are not designed for this -- for this purpose and they don't fit it very well, but I -- I think that that is not the property law in the District of Columbia. I think the property law is set forth in Fowler that if there is a property line running down through the middle and there isn't common ownership of the wall. But, Judge Holtzoff said -- would say that tenants and common cannot trespass on each other's property. Each one of them has got a right as long as he's not injuring the other. Well, I think that if this case is decided on the basis of the law today, that the action of the officers in this case was not in violation of the Constitution. I think the case is directly covered by the decision of this Court in the Goldman case and that it's -- by covered, by equal implication from the law in the Olmsted case. I would state that law, I think, as follows. That, if there is no physical illegal intrusion into the premises, there is no illegal search or seizure through overhearing or through seeing what takes place in those -- on those premises even when one uses electric devices to do it. I think Justice -- Justice Burton really stated the law in accordance with this in his dissent in the On Lee case. He said, "This Court has generally held that, in a federal criminal trial, a federal officer may testify to what he sees or hears take place within a house or room which he has no warrant or permission to enter provided he sees or hears it outside those premises. This holds true even where the officer supplements his hearing with a hearing aid." I didn't make up at all, but "with a hearing aid, detectaphone, or other device outside the premises."
William J. Brennan, Jr.: Detectaphone or other device. Are they synonym?
John F . Davis: Not entirely. This merely enables him to hear more distinctly where he is, what reaches him from wherever it may come. He and his earing -- hearing aid pick up the sounds outside of rather than within the protected premises. Well, if this is the law, and if it stands up until this case, then the question really comes down to whether or not electronic devices have developed to such a stage or the practice of electronic snooping has developed to such an extent that this Court now feels that it's necessary that this law should be changed. And, I suggest that, in making a determination of that kind, it should be based upon what we have before us and it shouldn't be based upon some type of electronic devices which are mysteriously -- described in -- in some other context.
Earl Warren: Mr. Davis, may I ask you the question that Mr. Justice Harlan asked Mr. Williams? Do you make any distinction so far as this right that you're talking about now in the police officers between the situation where they're just going around generally and listening into people's homes or the situation where -- on the other hand, where they suspect that maybe there's something going on illegally in there? Do you make any distinction or do you say that all of them are --
John F . Davis: Are legal?
Earl Warren: Are proper.
John F . Davis: Well, I -- I think there may be -- I don't know how to answer the question in terms of just going around listening because I think that if police officers are -- are patrolling and they hear things, whether they -- I mean, if it's their job to keep the peace and they're patrolling, and even if they have some device that helps them hear, if they hear things that are breaking the law, that this is -- this is not improper. I think -- I do think that you reach a stage of intrusion upon people's privacy where you reach violations of the Fifth and the Fourteenth Amendment, as -- as the Court implied in the Rochan case and some members of the Court and the Irvine case, that there can be such unplesh -- unpleasant intrusions into people's privacy that it violates the Fifth Amendment. And, in that respect, we do not have -- we've got a rather careful situation here. I mean, here, the officers had information that these people were carrying on a gambling operation. They observed it from across the street and they saw people whom they knew had -- to be -- to have been gamblers, they had police records, entering and leaving the premises. They found that the kind of equipment had been installed in the house which is used in this, namely, the telephone with three or four lines going in. It was on this basis that they began to watch more carefully what was going on inside the house. They gained entry into the house next door and they used this listening device. The house was, as I say, not a -- not a dwelling house. No one lived there. It was a-- used an operation for a gambling operation so that, there is -- there is in this case, if I may say so, rather careful pedestrian police work which led to the use of this particular device.
Earl Warren: Suppose had -- suppose these had just been some strangers there and the police said, "Well, we don't know who these people are and they may be involved in -- in some illegal activity, so we'll just go and put this instrument on their home and did this as a -- "
John F . Davis: I think it would have a harder case from that -- in that situation.
Earl Warren: It would be harder --
John F . Davis: I think it would be --
Earl Warren: -- what do you think of it?
John F . Davis: Well, I think, again, under the law that stands today, that there is not illegal search in such as -- in such a case.
Potter Stewart: Mr. Davis, I --
Earl Warren: Well --
Potter Stewart: Excuse me.
Earl Warren: You would sustain that?
John F . Davis: That is right. I would argue that, under Goldman -- that Goldman didn't depend upon anything else than it l -- that we -- unless we would have changed the law, that that would be sustained.
Earl Warren: And if we have to protect the public against that kind of so-called snooping, and -- then we'll have to get rid of Goldman.
John F . Davis: Well, I want to --
Earl Warren: Well --
John F . Davis: -- want to come to how to protect the public from that kind of snooping, and I will in a minute if -- but before I get off with the due --
Potter Stewart: Well --
John F . Davis: Excuse me.
Earl Warren: Go ahead, go ahead.
John F . Davis: I didn't --
Earl Warren: Just go ahead.
Potter Stewart: My -- my question is very similar to the one that the Chief Justice just asked you and it may be the same question, although I'm not sure. The Government used what was overheard by this device in this case in two different ways, as I understand it. It was used, first, in the affidavits which supported the search warrant. That is correct, isn't it?
John F . Davis: That is right.
Potter Stewart: These officers who overheard the conversations swore to that fact and it was on that basis or partially on that basis that the search warrants were issued. And then, in quite a different way or a second way, a distinct way, what was overheard was testified to at the criminal trial of these defendants and was admitted into evidence. Now, do you distinguish between those two uses at all? Might it be -- did you --
John F . Davis: I think --
Potter Stewart: Do you recognize that it might be possible that the --
John F . Davis: It might --
Potter Stewart: -- that the first use might be proper and the second one might be improper?
John F . Davis: I think it might be, but I think it cannot be important in the disposition of this case because I think that if -- I think the stricter rule would be in connection with the introducing -- introduction of the evidence at the trial. And if this was error, then this should be reversed as -- so that it washes out --
Potter Stewart: Reverse --
John F . Davis: If there is --
Potter Stewart: Reverse for a new trial but what was found, if the first use was proper --
John F . Davis: Then there would be --
Potter Stewart: -- what was found as a result of the search warrant would be admissible, wouldn't it? Would it not?
John F . Davis: That would, unless they have also --
Potter Stewart: Or it might be?
John F . Davis: That's right. And then, there is the -- there would be then the further question as to whether, on a new trial, they should be enabled to use the material --
Potter Stewart: Yes.
John F . Davis: That material. And, I think there would be a -- probably a less -- a -- I don't know how to measure these things, but --
Potter Stewart: Well, maybe (Voice Overlap) --
John F . Davis: At least, as you read the cases, there would be a less strict --
Potter Stewart: For example, hearsay can support --
John F . Davis: That's right.
Potter Stewart: -- an affidavit for the issuance of a search warrant.
John F . Davis: That's right.
Potter Stewart: And hearsay is not admissible in the -- in the trial of a case.
John F . Davis: And then --
William J. Brennan, Jr.: As a matter of fact, on the very first sentence of this affidavit under our cases, a search warrant would have issued, would it not?
John F . Davis: That's -- that's right, and --
William J. Brennan, Jr.: Without going into all the other details --
John F . Davis: Well, that's right. They were -- well, it didn't. I mean, it issued on everything but there probably was enough evidence outside of this in this -- in the affidavit because there was the information, there were the telephones, they were seeing the people go and come from the --
William J. Brennan, Jr.: Reliance on a reliable source.
John F . Davis: Yes, sir.
Felix Frankfurter: So, the first sentence wouldn't satisfy Draper, would it?
John F . Davis: Well, I don't know. It didn't -- it didn't describe them in detail. In Draper, as I remember it, they described the area in detail. But the question then is how do -- how does the public get protection from this kind of thing and I may suggest that appropriate -- the only effective way to get real protection if there are abuses, and there are abuses in parts of the country on wiretapping and -- and eavesdropping, is through legislation. The most that the Court can --
Earl Warren: But before you go into that point, my -- my question was in the context of a constitutional violation.
John F . Davis: Yes.
Earl Warren: If it was a constitutional violation, how would this Court stop it if you went as far as to say that it was perfectly alright for a police officer to -- to go to a strange home when he didn't know anything about? And, for the purpose of inquiring and finding out what -- what they were doing in there was to use this instrument. Well, I wasn't talking about whether Congress could do it --
John F . Davis: Well, in that --
Earl Warren: -- or whether they should do it, as talking in terms of the constitutional question.
John F . Davis: Well, the con -- it cuts into the constitutional question, too, because the type of legislation which has been suggested by Senator Keating, in the Senate and earlier in the House, deals not only with interception of telephonic communications, but also this kind of thing. And, there, there is a -- he concludes a provision for the issuance of warrants. So that -- if that kind of legislation were adopted, then the situation would be that this would be -- could be -- would, under the legislation, be considered a search, if you please. But, if the terms of the warrant were -- were met, by then, it wouldn't be considered an illegal search, an unreasonable search because it would be the kind of search which is ordinarily carried on through physical search warrants where you give authority to people to go into the premises and -- and hunt the things out so that we can get some relief on the constitutional ground, as well as on the -- on the legislative ground, through legislation.
Felix Frankfurter: Mr. Davis, you suggested about embarking and showing that it's -- there's no other way of dealing with this kind of united social conduct. The search warrant was based on this instrument we used on higher knowledge or belief, namely, reliable sources arouse suspicion but they must have known something. This kind of business is carried on either by people going there through the telephone. The people go there in numbers. You said there were quite a number, a hundreds of them, whatever there is.
John F . Davis: Yes.
Felix Frankfurter: But steady stream of people who were supposed to be at home raises the possibilities for inventing detectors to pursue and, if it's over the telephone, there are other means of finding out what this kind of heavy traffic over the phone does. Simply suggest even assuming that he's got with extra set of copies, I just wonder how much of this thing is -- the characteristic easy way of getting information instead of using brains, instead of devices like this.
John F . Davis: Well, I -- I think that this -- in this particular context of this particular case, and I don't know that all interception cases are like it, that you do have an example of the capital painstaking police work. Now, actually, in this case, there were no individuals that came to this house.
Felix Frankfurter: And it was --
John F . Davis: No money was --
Felix Frankfurter: Then there was a telephone.
John F . Davis: -- ever had.
Felix Frankfurter: Then there was a telephone.
John F . Davis: There were three telephone lines and, naturally, I mean, the -- the lines were -- were not intercepted. Note, there was no interception to the -- from the telephone conversations in this case.
Felix Frankfurter: You could find out -- it's not for me just to suggest, so I'd rather just make a venture. If the tele -- if the phones come at certain hours on certain days within a framework of interest --
John F . Davis: Well --
Felix Frankfurter: -- all sorts of thoughts can arise to a fellow which prevented from doing this.
John F . Davis: If -- if he knows the telephone is being used that way, yes.
Felix Frankfurter: Well, I'm -- my starting point is the starting point of the affidavit, reliable source. They must have known something.
John F . Davis: Yes, they -- they knew these gamblers -- these people who had been gambling and moved in here and put in telephones and were --
Felix Frankfurter: They didn't know that --
John F . Davis: -- coming and going at these regular hours.
Felix Frankfurter: They didn't know that, did they?
John F . Davis: They didn't know that, yes.
Felix Frankfurter: Well, that enables them, if it's -- if it's horse races and baseball games, that already limits still the area of inquiry or points it up to where it can be pursued and --
John F . Davis: Well --
Felix Frankfurter: -- and good sniffing can be technical deal.
John F . Davis: That's right. I think, in determining whether to -- if I'm right, in determining whether to go further than was -- than the courts were willing to go in Olmsted and in Goldman, consideration should be given to, as I say, one, whether this thing is so horrifying, these things have developed so far that the situation which existed in a time ago when Olmsted is -- no longer fits -- fits the present picture and I submit this -- this thing doesn't show anything like that. The second question is whether the practice, with the practice of wiretapping, snooping, and things like that has gone so far, become so distasteful that, now, we feel we have to do something different than -- that has been done before and do it through court-made law rather than legislative law. I think it may be of some help to the Court to read a report of the Committee of Privy Counselors, published in 1957 as Command Paper 283, in which an investigation was made in Great Britain with respect to interception of communications and the report of this Committee is -- Committee of a man who carry some weight. There was Lord Monson and Sir Norman Birkett and Mr. P.C. Gordon Walker who made this report and, their feeling was that no action should be taken in Great Britain to prevent the -- to upset the then status quo which did permit, and they felt lawfully, the interception of Massachusetts.
Felix Frankfurter: Mr. Davis, since you rely on that report, more needs to be said about it. First and foremost, no such tapping is authorized in England, except by the person, I emphasize, the person who associates the permission. The second, they have State for Home Affairs. He's the third most important member of the Cabinet. He personally is responsible for it. He's responsibly in the House of Commons to defend it. And, if you -- since you read the report, you know how few such permissions are given. They're almost negligible in number. All of which is true, isn't it?
John F . Davis: This is true.
Felix Frankfurter: Alright.
John F . Davis: This is --
Felix Frankfurter: Now, if we -- we had the kind of positions they had, an officer who's in the position of the Home Secretary, as I say, the third important -- he holds the third -- most important post to the British Government and he himself, on his own conscience, responsible for the questioning of the House of Commons, must give this permission.
John F . Davis: Now, as --
Felix Frankfurter: Even then, as you know, there's a great deal of galop in the racecar.
John F . Davis: As far as federal wiretapping goes -- and as far as the states goes, it's a different question. As far as federal wiretapping goes, the testimony has been that the Federal Bureau of Investigations taps no wires except in a very limited kind of case, the espionage and sometimes, kidnapping --
Felix Frankfurter: Have you got any number? Have you got it in number?
John F . Davis: Yes, yes.
Felix Frankfurter: How many?
John F . Davis: 73, a number which is less than shows in this report.
Felix Frankfurter: And do you --
John F . Davis: Just to who -- who have testified that there was 73 and that there -- in one year. There'd never been more than 200, numbers which compare very -- very closely with the numbers in this report, Mr. Justice.
Hugo L. Black: Who will locate --
John F . Davis: Pardon?
Hugo L. Black: Who'll have to locate the man at the apartment?
John F . Davis: The -- none of the -- no wiretapping can take place without the personal approval of the Attorney General of the United States, not the Deputy Attorney General or -- or anybody else, the -- the Attorney General of the United States --
Felix Frankfurter: Can we find out what permission he gave or what Mr. Hoover does? Can anybody find out? You know very well he can.
John F . Davis: This -- this is -- the only evidence we have is the evidence of these statements which are made to Congress and which I assume we will accept.
Felix Frankfurter: But these are statements holds there. These arose -- the report what you have in your hand arose out of a specific case. It was so aroused the concern of the British public that they had a two-day debate in the House of Commons which resulted in its very way you report by the imminent people.
John F . Davis: Yes, we don't -- we don't do our investigations as well, but we do them very thoroughly. I have here the reports of the Senate Committee investigating wiretapping and this extremely thorough report shows a great deal of eavesdropping by detectives in -- in some of the States in New York. There's a great deal of information about wiretapping in New York States and -- but no one, so far as I know, questions the -- the accuracy of the figures on federal wiretapping.
Felix Frankfurter: Yes, but there are --
John F . Davis: Now --
Felix Frankfurter: -- report say to carry this report down to what happened very recently, early this year at least, namely, one of these authorizations was given. It was in connection with a member of the medical profession who, on the basis of the disclosures found, reported by the Home Office, but the Medical Society expelled him. There was another hullabaloo and there was another report and the conclusion was that what was obtained by these -- in these rare instances was not to be given no matter how laudable the purpose to any other agent.
John F . Davis: Yes, that was their -- this report, too. I think they handle them extremely well in England. I'm not --
Felix Frankfurter: That's just a question as well as --
John F . Davis: I'm not --
Felix Frankfurter: -- the question of what security you have as against ours.
John F . Davis: As far as the federal system goes, the system which is followed here, it appears from all -- everything we can tell is -- is very close to the same system that they followed in Britain.
Felix Frankfurter: Well, you're much more optimistic about that than I have reason to believe.
John F . Davis: Now, if this is not so, if -- if wiretapping is becoming an intolerable intrusion into our privacy --
Felix Frankfurter: That isn't what Mr. Dasher's report concluded, did it?
John F . Davis: Mr. Dasher's report typed away from the federal wiretapping entirely.
Felix Frankfurter: For a very good reason which you --
John F . Davis: Well --
Felix Frankfurter: -- probably know is well provided.
John F . Davis: Well -- but the report-- Mr. Dasher's report doesn't -- doesn't have anything on federal wiretapping.
Felix Frankfurter: No, but it's held to the extensiveness of it.
John F . Davis: It's very extensive in many places, particularly in the big cities, and if it has become -- now, what the courts, if -- if this is to be handled by court-made law, the most that can be done, may I suggest, is to discourage the only type of wiretapping that has a social -- social benefit, namely, wiretapping by police officials who are attempting to -- to enforce the law. This will -- nothing this Court does with respect to that will have anything to do whatsoever with wiretapping by private detectives, by state agencies or by purveyors of -- of malicious gossip, blackmailers, I mean, all that is out. So that, really, if this is a problem -- a social problem which needs correction, the appropriate way to correct it is through legislation and Congress has -- has been worrying with this problem for a good -- for a good period of time and I suggest for your consideration the bills which have introduced by Congressman Siler in the House and Senator Keating in the Senate, neither of which received -- well, the Senate Bill didn't receive the entire approval of the department because, there, you'd have to get a court order for wiretapping and the department's position is it should've continued to authorized by -- by the Attorney General. But, these -- these Bills, particularly, Senator Keating's Bill will fetch not only teleph -- interruptions of telephonic communications, but it will cover the kind of thing which is involved here insofar as there's any federal authority to do it. And, it will cover it not only as far as federal law was concerned, but it will cover it in the much more important field where -- whenever there is federal power, it will be outlawed when -- whoever does it. Now, the State of New York has already passed its own legislation which outlaws not only wiretapping but eavesdropping itself. What they haven't done in New York is to outlaw the use of that evidence, of course, in criminal cases. So, I suggest to Your Honors that --
Felix Frankfurter: They have outlawed, it's used by private people altogether, haven't they? People are being sent to jail in New York for private detection.
John F . Davis: For -- for wiretapping or eavesdropping --
Felix Frankfurter: Yes.
John F . Davis: -- that is true. Well, but the -- the detectives can be sent to jail, too, if they don't -- if they don't get a court warrant for it. The only question that's opened is whether or not the evidence which is illegally obtained in New York can continue to be used in the criminal trials. It's outlawed in civil trials but it still can be used in criminal trials in New York. So, I -- I suggest --
Felix Frankfurter: May I ask you -- may I ask you whether -- repelled, whether the basis of allowing wiretapping on by the Department of Justice is on an ad hoc basis or other categories of crime?
John F . Davis: J Edgar -- Mr. J. Edgar Hoover has stated that his views only in the -- in the special category of crimes --
Felix Frankfurter: (Voice Overlap) --
John F . Davis: And he names subversion, the national security, and crimes in --
Felix Frankfurter: Kidnapping.
John F . Davis: Involving danger -- immediate danger to human life. Most of the Bills which have introduced -- been introduced in Congress, by the way, would limit the use of this thing to the same sort of situation.
Earl Warren: Mr. Williams.
Edward Bennett Williams: There were some questions asked of counsel for the Government that I think should be cleared up by record references. The suggestion was made to the Court that it was wholly a defense theory that the agents of the Government were hitting the duct of the premises at 408 21st Street. The record doesn't bear this out because, at page 144 of the record and 145, it's shown that Officer Stone said, and I cite the bottom of page 144 that, in response to a question, "Now, when you penetrated with your mic, you penetrated at the point of the heat duct, did you not?" "Possibly, yes, sir." Then, over at 145, "And you thought you were going in at a point where the duct was, did you not?" Answer, "I had an idea that might be the case. Yes, sir, and the duct at 408 filled the part of what otherwise would have been a party wall, did it not?" "That's correct. It was inserted into the wall." And that particular duct was a duct that serviced 408 exclusively, did it not?" And, he answered, "That's correct." Now, at page 158, if the Court please, a reading of the colloquy at page 158 where the same witness is under examination, I cannot but to suggest to the Court that he believed, although it was difficult to get him to admit that he was penetrating at a point where he was touching the duct. He says, at the bottom of page 58, after several questions at 158, "I believe I did state that I thought of the possibility that the mic was contacting the duct on the other side." And, at page 160, the question is put, "Now, you testified," and I'm reading from two-thirds of the way down, "in answer to a question by Mr. Williams, you knew you didn't think you were hitting brick when you came into this object, isn't that correct?" Answer, "It didn't feel like a brick wall, no, sir." Question, "What did it feel like to the best of your memory?" "Well, there was a sleight, slight bit of give, a slight before it stopped." The record is absolutely uncontradicted, if the Court please, that the only place where this needled could penetrate is was for a nine-inch stretch under the baseboard of that wall, precisely in front of the heating duct. Mr. Chief Justice asked the counsel for the Government if there was anything in the record to show how far this needle had to be inserted before it touched the duct. The rec -- the record is entirely clear on this, Mr. Chief Justice. I direct your attention to page 215 of the record. Page 215, Question, and I'm reading from about one-fourth of the way down, "Will you tell His Honor and the jurors the measurements that you found when you measured that distance including the shoe molding, the baseboard, and then the plain airspace." We found we had to go in seven and a half inches -- seven and an eighth inches to touch that duct -- the back of that duct." Seven and an eighth inches counting what sir, counting the shoe mold and the baseboard, yes, sir." At 220, that testimony is repeated. Halfway down, "Now, I believe you testified there came a time when you went to 410 21st Street and you insul -- inserted a coat hanger or a spike. You had to put this object seven and a half inches from the lip of the toe molding to touch what you referred to as the back of the duct, is that correct?" Answer, "I believe I said seven and an eighth inches, sir." "Seven and an eighth?" "Yes, sir." Again, at page 234 and 235, if the Court please, that testimony is repeated. If you will look at the very top sentence at the page 235, you will see that it was seven and an eighth inches that this spike had to penetrate in order to touch the duct. Again, the record speaks contrary to what counsel for the Government says when he says that it's silent with respect to whether this had to come in contact with the surface in order to be effective because, at page 200 -- I'm sorry, at page 156, it's entirely clear from the record that this had to touch something. From the testimony of the Government's own witnesses, two-thirds of the way down, Question, "Well, will you explain it to me again then, please, because I didn't understand?" Answer, "I said from my knowledge of this instrument, it should be in contact, that the point should be in contact with some surface which would act as a sounding board to pick up the sound waves and transmit the sound waves to the needle. The needle does not have to be embedded into that object so long as there is a contact." Also, the record is very clear, if the Court please, that the fact is they could hear conversations from all over the house at 408 21st Street, petitioner's dwelling house." Page 97 of the record and, again, it's the Government's own witnesses, at the very bottom, "Now, where did Mr. Menendez and Mr. Martin conversed?" Answer, "I couldn't tell you exactly where they conversed because I was not in the premises. I could not tell you exactly where they conversed because I was not in the premises of 408 but, it seems to me, they were conversing in the room on the first floor, on the first floor of the building, I would say and, mind you, they were on the second floor when they conducted their electronic surveillance. It --
Earl Warren: Where -- where is that on the --
Edward Bennett Williams: At the very bottom, Mr. Chief Justice, at page 97.
Earl Warren: 97.
Edward Bennett Williams: Then, again, at page 98, question, "Is it your testimony that this microphone on the second floor picked up conversations on the first floor?" Answer, "That is correct. I would say that." Again, at page 99, if the Court please, "Now, on the occasion that you were there with Detective Stone when you inserted the spike microphone and Mr. Menendez was present in the other house with Mr. Martin, you were in this front bedroom, were you not?" "That is correct. I was in the front bedroom. That was on the second floor." Again, if the Court please, at page 100, question, "Did you go downstairs when you found that Mr. Menendez and Mr. Martin were conversing downstairs? Did you go downstairs and insert your microphone?" Answer, "No, sir. It was not necessary to go downstairs to insert the microphone." So, I say that it's accurate and there are other references here. Again, at page 101 and 104, that they were using the sound -- the elec -- the heat conductor system of 408 is a giant sound conductor. There was nothing else there for this needle to touch except the -- the metal heating duct it gave, and it gave them auditory observation of all of the premises at 408 21st Street by seven and one-eighth inch insertion into the party wall.