Kaiser v. New York/Dissent Harlan

Mr. Justice HARLAN (dissenting).

It is conceded that petitioner's conviction rested largely upon evidence acquired by nontrespassory wiretapping conducted pursuant to a warrant issued under N.Y.Code Crim.Proc. § 813-a. The Court affirms the conviction on the ground that today's decision in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, necessarily dictates that evidence obtained by an illegal, nontrespassory wiretap will be inadmissible only if the tapping occurred after the date of the decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The wiretapping in this case took place prior to Katz. However, the case is here on direct review, and for the reasons stated in Part I of my dissenting opinion in Desist, supra, 394 U.S., at 258-259, 89 S.Ct., at 1038-1039, I would hold that petitioner is entitled to benefit from the Katz rule.

It is therefore necessary for me to consider whether petitioner's federal constitutional rights were violated by the wiretapping. Were I free to do so, I would decide this issue by inquiring whether, on the facts of this particular case and in light of New York decisions construing § 813-a, the wiretapping was valid under the Warrants Clause of the Fourth Amendment. See Ker v. California, 374 U.S. 23, 30-34, 83 S.Ct. 1623, 1628-1630, 10 L.Ed.2d 726 (1963); see also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, I believe that this approach is foreclosed by this Court's decision in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). 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. Hence, the Court's 'on its face' approach would seem necessarily to embrace § 813-a wiretapping.

I dissented from the 'on its face' approach adopted in Berger. See 388 U.S., at 89, 87 S.Ct. at 1898, et seq. I continue to disagree with that approach. Yet I think that Berger must be taken as having decided that a warrant issued pursuant to the version of § 813-a then in effect could not possibly satisfy the requirements of the Fourth Amendment. Since I regard myself as bound by Berger, I am reluctantly compelled to conclude that the wiretap evidence introduced against petitioner was seized in violation of the Constitution, and that his conviction consequently cannot stand.