Cook v. United States (401 U.S. 996)/Dissent Douglas

I would grant the petition on the issue of electronic surveillance.

In this criminal prosecution counsel for the defense asked if the Government had obtained any evidence by means of listening devices or electronic eavesdropping. The prosecutor would say only that 'no illegal eavesdropping devices were used.' He would not state whether any eavesdropping equipment had been used. The trial judge refused to order the disclosure.

On appeal, petitioner contended that the Government must disclose whether there had been electronic surveillance, regardless of its views of the legality. The legality of such surveillance was for the court to determine, he argued, and he asked for a hearing to determine if such devices were used. The Government asserted on appeal that 'there was no electronic surveillance involved in this case.' This statement was supported by a letter from the Department of Justice:

'Please be informed we have contacted the appropriate     investigative agencies and have been informed Cook was not      the subject of a direct microphone surveillance nor were any      of his conversations monitored. Further we are informed, no     electronic surveillance was maintained on premises which were      known to have been owned, leased, or licensed by the above      individual.'

Petitioner contended that this letter was far from clear as it did not state which agencies were contacted and only stated that he was not the subject of 'direct' microphone surveillance, suggesting 'indirect' surveillance. The Court of Appeals agreed that the statement of the prosecutor was 'not unequivocal' and that the disclosure should have been made to the trial judge. Yet it affirmed the conviction without further inquiry.

Petitioner contends that he is entitled to a judicial determination of the existence and legality of electronic eavesdropping. He argues that the United States has never stated unequivocally that no electronic eavesdropping occurred. The Solicitor General relies on the letter which I have quoted. Moreover, he indicates that the procedure followed below is in accordance with 'statutory procedures now provided with respect to claims of illegal electronic surveillance in proceedings occurring after October 15, 1970. * *  * ' From now on the United States will not even review its files to determine the existence of evidence stemming from electronic surveillance unless the defendant meets the 'burden of raising any issue of illegal electronic surveillance. * *  * '

The Omnibus Crime Act, 82 Stat. 197, 212, 18 U.S.C. §§ 2510-2520 (Supp. V), provides for electronic surveillance either on warrants issued by a magistrate, § 2516, or on the sole initiative of the designee of the Attorney General who 'reasonably determines' that there is 'an emergency situation' respecting 'conspiratorial activities' which threaten the national security or which involve 'organized crime.' § 2518(7). The officer must apply for an order approving the interception within 48 hours, complying with procedures for obtaining an order of authorization. If the application is denied, or approval is not issued before the interception is terminated, the contents of any intercepted communication are to be treated as illegally obtained. 18 U.S.C. § 2518(7).

The Act sanctions free use of intercepted information among investigative personnel, § 2517(1). It also widely protects 'evidence derived therefrom,' § 2517(1)(2)(3), including the giving of testimonial evidence. But any person whose 'wire or oral communication is intercepted, disclosed, or used' in violation of the ways I have enumerated has suit for actual and punitive damages and reasonable attorneys' fees and costs. § 2520.

The issue of 'illegality' raised by the Government's defense would raise a myriad of questions depending on the facts. They would pertain to the question of whether the showing required by § 2518(1) of the Act had been made to the magistrate and raise the basic question whether, if a magistrate issued a warrant, there was 'probable cause,' § 2518(3). If there were a warrant, the question would also be whether the 'search' was confined to the person, place, and time which were authorized. § 2518(4)(5). If there were no warrant but only the action of the Attorney General under § 2518(7), a host of different questions would be raised on the issue of 'illegality.'

These are new questions not yet decided under the new Act. They are important questions involving high matters of policy. They will affect many cases. It is appropriate that we reach the questions here and now, so that the procedures to be used in protecting the rights of the citizen and confining the prosecution within constitutional bounds be resolved.

While Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, was pending here, it was revealed that the United States had engaged in wiretapping which may have violated the Fourth Amendment and tainted the convictions of petitioner. We had earlier refused to accept 'the ex parte determination' of the issues by the Department of Justice Kolod v. United States, 390 U.S. 136, 137, 88 S.Ct. 752, 19 L.Ed.2d 962, and in Alderman worked out the procedures whereby the District Court would determine whether the evidence obtained was 'the product of illegal surveillance.' 394 U.S., at 168, 89 S.Ct. 961. The questions in that case concerned the use of 'evidence originating in electronic surveillance violative of his own Fourth Amendment right to be free of unreasonable searches and seizures.' Id., at 176, 89 S.Ct., at 968. That is the question here and is obviously not controlled by administrative practice or the Omnibus Crime Act, both of which are subordinate to the Constitution.

The procedure to be designed here is not relevant only to criminals.

Electronic surveillance is today common and pervasive, as we know from reports filed pursuant to § 2519(3) of the Act and from various Senate and House investigations, including the one just concluded by Senator Ervin. These invasions of privacy apparently touch not only criminals but reputable people whose only offense is political, social, or ideological non-conformity. As stated in Westin, Privacy & Freedom, pp. 365-366 (1967).

'As of the 1960's, the new surveillance technology is being     used widely by government agencies of all types and at every      level of government, as well as by private agents for a      rapidly growing number of businesses, unions, private      organizations, and individuals in every section of the United      States.'