Your rights are on trial; Wiretapping

The following tape recorded program is distributed by the National Association of educational broadcasters. The walkie talkie device was tantamount to an illegal search and seizure intended at an age of deference whether a person took tangible property such as papers or records or store your thoughts or your words. That was the voice of Gilbert Rosenthal the attorney for the defendant on today's program the case of the wireless wiretap. The second in this series of authoritative discussions and authentic dramatizations of High Court cases in which your rights are trial. What are your rights in relation to wiretapping. This question will be answered

as we present the true story and official opinion of a Supreme Court case in which your rights are. Your rights are on trial. Is produced by the University of Minnesota under a grant from the Educational Television and Radio Center in cooperation with the National Association of educational broadcasters and the University of Minnesota Law School. On today's program. You will hear the actual voices and views of the defendant's attorney Gilbert Rosenthal. Patrick Murphy Executive Director of the American Civil Liberties Union and Federal Judge Frank part of his own opinion in our case today. But first to set the stage for the authenticated case of the y o Here is one of the consultant commentators for your rights our associate professor of law at the University of Texas Mr. Charles Allen.

The Fifth Amendment to the Constitution of the United States says No person shall be deprived of life liberty or property without due process of law. The Fourth Amendment to the Constitution says the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated. These amendments became part of the Bill of Rights and thus the law of our land nearly 200 years ago. When the Fourth and Fifth Amendments to our Constitution were written and ratified there were no such things as telephones or radios or electronic devices. What supplies some of these modern advances just to the Fourth Amendment to the right of the people to be secure against unreasonable searches and seizures. You have a telephone. It can be tapped. Is this an unreasonable search. You have a home or an apartment or just a room. It is your private castle but it can be probed by hidden microphones or searched by

electronic devices. Is this an unreasonable search. Mr Justice Brandeis posed this problem that our founding fathers could not have been aware of in his famous dissent in the Olmsted case more than 25 years ago as Mr Justice Douglas stated in his opinion in our case for today. What Brandeis wrote is an historic statement of that point of view. I cannot improve on it. Here is what Brandeis wrote. When the Fourth and Fifth Amendments were adopted the form that evil had there before taken had been necessarily simple. But time works changes brings into existence new conditions and purposes subtler and more far reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government by means far more effective than stretching upon the rock to obtain disclosure in court of what is whispered in the

closet. Moreover in the application of the Constitution our contemplation cannot be only of what has been but of what may be ways may someday be developed by which the government without removing papers from secret drawers can reproduce them in court. And by which it will be enabled to expose to a jury the most intimate occurrences of the home. Can it be that the Constitution affords no protection against such invasions of individual security. What the Constitution does or does not provide in this area is something that only can be determined and re determined by the high courts or via land. We must have a Supreme Court if for no other reason than to interpret our constitutional rights in the light of technical advance. The followers of science fiction might be more intrigued by some of the legal and philosophical challenges within existing scientific fact. I casted as dramatic representation of just such

challenges. It ends with a split decision by the United States Supreme Court but it starts with a minor scientific type brainstorm in the mind of the Narcotics Bureau agent on the East Coast some five years ago. I'm not worried about the receiving end. I shortwave settle pick it up all right. What are you going to be just across the street. Here's the layout here. I'm Leeza little laundry shop is located here. I'll be in a car with our Best Short Wave receding set parked across the street towards the corner here that's by a hundred feet away then I get a hundred fifty will be more than safe. Jim point a move around a bit. He's the one who will be wearing the concealed microphone and transmitter. He's not the most savory individual around but he used to work for Riley in the laundry man like some idli is liable to make some incriminating statements to a chimp or in a little casual conversation.

I get it and you will be monitoring this little casual conversation across the street. If you can fix it up with built in my transmitter. Well it doesn't take much of a signal to carry a hundred fifty feet. I've got a microphone here small enough to set my tie clasp or the wire from the mike and run directly back through his shirt. It sounds alright still for she had two stage transmitters only about so big that can fit in one suit coat pocket PC and a couple of little batteries and the other few connecting wires under the shirt and I think you've got what you want. Great I'll bring pin point up for a fitting this afternoon. Look one thing you know. This is none of my business but is this sort of thing legal I look I'm trying to catch a man who pedals dope and you show me a lousy a racket and I caught Excel go to work for you. I just that I think I know the man who passed the stuff I only know I know the stuff opium. I even know how much one pound I need evidence. He had to stand incriminating statements

evidence. Now how am I supposed to get it. Ok ok you brain your chin poy around now turn mental and not electronic miracle. Ya. Ya. Chin pour I entered on Willie's laundry with the concealed microphone and transmitter. Our conversation was picked up and this did incriminate on Live with the transmitted conversation and other evidence that developed from much on Lee was found guilty and sent to prison. We've not dramatized incriminating walkie talkie conversation between chin point on lay for several reasons. For one thing it was in Chinese. But more important the content of the conversation itself has been challenging. The most scientific highly developed kind of wiretapping electronic device cannot guarantee the integrity of those who use it. Even a tape recording can be edited or doctored to make the speaker say almost anything. This

factor is worth mentioning because we have a tendency to automatically assume that the results of scientific methods of detection are incontrovertibly findings of fact. If your methods are full proof legal and civil rights would not be fully guaranteed even if all police methods were scientific. This factor and others are important to our story today were cited in an interview of the producer of the series Philip Geld had with Gilbert Rosenthal the defense attorney in the case under analysis as transcribed in his office in New York City. Here is on Lee's attorney Mr. Gilbert Rosenthal. First what happened on Libby. I'm Lisa said this is free is less good time I had no change in occupation because he was the head laundryman up at the Westside house of the tension in the office and he's now back in his laundry in Hoboken. Did you communicate by Reza recently retained by him for the trial and I represented him

both throughout the trial and his various appeals. I had no idea at the time this was going to go as far as the Supreme Court. I had no thought of the Supreme Court at all at the time I was originally retained or even at the time of the trial. Well when you get this report might tell it was a case that presented the contention of the defendant not in the Supreme Court it was known as the petitioner who was dead. Do you so the walkie talkie device was tantamount to an illegal search and seizure. We contended that it made no difference whether a person took tangible property such as papers or records. Joe your thoughts or your words. The fatal viciousness of this act as I think most apparent in the I-League case for this reason the mantle spoke but to Langley and with family and what they

had concealed on him the transmitter was a person of law repealed with a long criminal record. Judge Jackson said that no doubt the reason why they didn't call Chen ploy the individual I just referred to and instead use the Add testimony of the narcotic agent who was supposedly had listen to the conversation was they probably felt champ or I wouldn't be believed by a jury. Well unfortunately Rafe onlly and myself we did not know that they not conic agent who testified was on the verge of getting into hot water. What the Treasury Department been caught red handed accepting money. From defendants and delay things detrimental to the Treasury service

and it was about four or five months after this trial that he was cashiered out of the Treasury service. I subsequently obtained an affidavit from Chen employee to the effect that while he had talked with on Lee They conversation with not along the lines that agent Ransley had testified to and the motion was made for a new trial. Which motion was denied. That was Gilbert S. Rosenthal on Lee's lawyer as recorded in his office in New York City. For an analysis of this case in terms of the conflict between safety for the money vs. freedom to the individual what is listen now to Mr. Patrick Murphy May 1 the executive director of the American Civil Liberties Union as recorded in New York Mr. might one. This is a modern example of the old problem that our forefathers wrestled with when they put the Fourth Amendment into the federal

Constitution dealing with search and seizure. Even if the problem of both legal and illegal private wiretapping were solved there would be the problem of official wiretapping. You have heard reference to that in the preceding portion of this program in connection with the on Lee case. This problem of official wiretapping is the crux of the matter. How can the police state and federal and local cope with the business of crime without interfering too much with the liberties of citizens who are not criminals. Can we have enough crime prevention without there being built. Up in the records of the police a lot of miscellaneous information about the

private lives of people who aren't criminals who never will be criminals. But on who's alive is there may fall blight because these records are kept in police files where they may be used as a basis of blackmail or corruption. A free society of free men has to take some risks and I believe major risks in order to remain a free society a free man. That was the executive director of the American Civil Liberties Union Patrick Murphy May 1. Before we learn of the Supreme Court decision in the onlly case here is Judge Jerome Frank of the 2nd Circuit Court of Appeals reading part of his own dissenting opinion when the onlly case was heard by the court of which he is a member as recorded at the L Law School in New Haven Connecticut. Judge Jerome Frank. I believe that under the amendment the sanctity of a man's house

and the privacies of life still remain protected from the uninvited intrusion of physical means by which words within the House are secretly communicated to a person on the outside. A man can still control a small part of his environment. His house. He can retreat then from outsiders secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizeable hunk of liberty worth protecting from encroachment. Were my colleagues correct. The fourth amendment would be an operative if a government agent entered a house covered with a cloak of invisibility a garment which ingenuity may soon yield. We shudder at the nocturnal knock at the door by searchers armed with no warrants. How much worse is a secret search by an oculus sneaky unknown entrant. The microphone here was brought into on Lee's establishment without his permission.

It was just as if the agent had overheard the conversation after he had sneaked in when on Lee's back was turned and had then hidden himself in the closet Orley agents subsequent evidence gathering was a result of a concomitant of the unlawful invasion. The practice of broadcasting private inside the house conversations through conceal radios is singularly terrifying when one considers how this device has already been used in totalitarian lands. Or well depicting the horrors of a future completely reget regimented society could think of no more frightening instrument there to be employed than the telescreen compulsorily installed in every house. The telescreen he writes received and transmitted simultaneously and any sound that Winston made above the level of a very low whisper would be picked up

by it. You had to live did live from habit that became instinct in the assumption that every sound you made was overheard and except in darkness. Every movement scrutinized such a mechanical heart may soon be the dubious gift of applied science. They were judged wrong Frank is eloquent and indignant over what he deems to be the threats to freedom in the onlly case. There is another side to the story the other side is a popularly held view. It is concisely expressed in the Reader's Digest article. Why do our courts protect criminals written by retired University of Michigan law professor John Barker wait. Criminologists long have known that the certainty of swift arrest and just punishment is a most effective crime deterrent. Thus when any court permits technicalities of procedure to interfere with fair punishment of wrongdoing it encourages lawlessness here splitting

judges have tied the hands of enforcement agencies and abetted and encouraged criminals. The trend toward the frequent use of the unreasonable search clause to escape just punishment began in 1014. Federal agents had arrested a man named weeks suspected of mailing lottery tickets at a railway station. They then borrowed the key to his rooming house door from a fellow lodger and entered without a search warrant. They used in evidence the lottery tickets they found in weeks quarters and he was convicted. The United States Supreme Court reversed that conviction on the ground that search of the room without a proper warrant was unreasonable. The court then stated that no evidence against anyone whose privacy has been unreasonably invaded to get that evidence may be used no matter how clearly it establishes guilt in reversing convictions. Judges too often show greater concern with the behavior of police then with the prevention of crime and the punishment of offenders.

Before we conclude that our High Court always turns criminals on fly specks of technicality. Let us listen to part of the majority opinion of the United States Supreme Court in our case today. The majority opinion on late case was written by Mr Justice Robert Jackson. Why is the monitored conversation deemed an unreasonable search. Was on the convicted through an invasion of his constitutional rights. Here is the all fishel and legal answer. In the case of only the decision of the United States Supreme Court. PETITIONER. Was convicted on two count indictment one charging the substantive offense of selling a pound of opium and the other conspiring to sell the opium. The questions raised by petitioner have been considered but only one is of enough general interest to merit discussion that concerns admission and evidence of two monitored conversations. Petitioner had while at large on bail pending trial with one chin poy

chin ploy an old acquaintance and former employee engage the accused in conversation in the course of which petitioner made incriminating statements petitioner contends that this evidence should have been excluded because the manner in which it was obtained by lates the search and seizure provisions of the Fourth Amendment and if not rejected on those grounds we should pronounce it inadmissible anyway under the judicial power to require fair play in federal law enforcement. The conduct of chin paw and Agent Lee did not amount to an unlawful search and seizure. Such as prescribed by the Fourth Amendment and Goldman versus the United States. We have all of the action of federal agents in placing a dictaphone on the outer wall of defendant's hotel room and there by overhearing conversations held within the room did not violate the Fourth Amendment. There the agent had earlier committed a trespass in order to install a listening device within the room itself. Here no trespass was committed. Chin paw entered a place of business with a consent if not by the implied in the patient of the petitioner.

The further contention of petitioner that Agent Lee outside the laundry was a trespasser because by these aides he overheard what went on inside verges on the frivolous. Only in the case of physical entry either by force by unwilling submission to authority or without any express or implied consent with the problem left undecided in the Goldman case before the court. Petition urges that if his claim of unlawful search and seizure cannot be sustained on authority that we reconsider the question of the Fourth Amendment rights in the field of overheard intercepted conversations the presence of a radio set is not sufficient to suggest more than the most attenuated analogy to wiretapping. But this new I was talking confidentially and indiscreetly with one he trusted and he was overheard. This was due to aid from a transmitter and a receiver to be sure what with the same effect on his privacy as if Agent Lee had been eavesdropping outside an open window. The use of bifocals Feo glasses or the telescope to magnify the object of a witness's vision

is not a forbidden search or seizure. Even if they focus without his knowledge or consent upon what one supposes to be private indiscretions it would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spare iest liberties improvised by far fetched analogies which would like an eavesdropping on a conversation with the connivance of one of the parties to an unreasonable search or seizure. However unwilling we as individuals may be to approve the conduct such as that of John Paul II. Such disapproval must not be thought to justify a social policy of the magnitude necessary to arbitrarily exclude otherwise relevant evidence. We think the administration of justice is better served in stratagem such as we have here are regarded as raising not questions of law but issues of credibility. We cannot say that testimony such as this shall as a matter of law be refused all hearing. We find no violation of the Fourth Amendment here.

That was the Supreme Court decision. A majority 63 opinion in the case of on leave vs. the United States. It is one of hundreds of cases in which it is apparent that our high courts are not out to protect criminals. What can we say about illegal search and seizure by scientific methods. It seems perfectly clear that police are going to be allowed to use improved scientific methods of crime detection which the founding fathers never contemplated. Certainly criminals are going to use every latest scientific advance and we would be hobbling the place unnecessarily if we were to say that the police can only use those methods of crime detection which they used in 1791 when the Fourth Amendment was adopted. The same top on it must be equally apparent that some scientific

advances do threaten to produce restrictions on our freedom of the sort that our forefathers had they known about them would have detested none of us like the image which Judge Frank mentioned in his opinion the onlly case of the telescreen that Gilbert Orwell described in his novel 1984 by which the state can walk into everyone's living room and see and hear all that is there done that is quite inconsistent with the notion that a man's home is his castle and bought it in the fourth amendment. About all that we can do by way of applying our constitutional provision to the latest achievements of science is to insist that we preserve the kind of society which the founding fathers had none. A society in which the individual is free and the state may not enter into his private affairs without a by your leave. Deciding whether a particular scientific technique is consistent with this kind of society is of course an extremely difficult problem and

one that can only be resolved by way of the conflicting interests present in a specific case. Just as the court did in the on leak case perhaps wiretapping is a good example of how difficult it would be to try and formulate any general rule wiretapping. According to Mr Justice Holmes 25 years ago is a dirty business. Yet it has never been held unconstitutional wiretapping since 1934 has been absolutely illegal prohibited by Section 6 0 5 of the Federal Communications Act. Yet every day hundreds or thousands of telephone wires are tapped some are tapped by law enforcement authorities others are tapped by private persons out to gain information to use for their own purposes. We have never enforced the law against wiretapping because the highest law enforcement officers tell us that they will be crippled if they can't tap wires under some circumstances. Perhaps what we need is to formulate exactly the

circumstances in which we think public necessity requires wiretapping and permit those by law and then vigorously enforce our provisions of law against other than authorized wiretapping. There have been proposals in Congress from time to time to do this but they have not yet passed. Some of the states such as the state of Minnesota have adopted modern legislation which does permit wiretapping under some circumstances but very strict limits that if the narcotics agent in our case today had tapped on Lee's telephone he would almost surely not have been prosecuted for doing it. But at the same time the federal courts would not have allowed the recording of on Lee's conversations to be admitted as evidence. But because he used a radio transmitter rather than tapping a telephone wire. The Supreme Court finds that there is nothing prejudicial in allowing this evidence in this kind of nice distinction perhaps a too nice distinction to some shows the difficulty. All problems in this area and it

suggests as do all the problems that we're studying in this series that preservation of liberty proceeds from case to case and must constantly be re-evaluated by the courts. And there is no hope of any one sweeping answer. You have just heard the case of the wireless wiretap. The second program in this area is your rights are on trial. By station KUNM in cooperation with the University of Minnesota Law School. Under a grant from the Educational Television and Radio Center. This program is distributed by the National Association of educational broadcasters. The consultants will this series by professors of law Brad Paulson and Charles Allen write. Mr

Wright was the commentator on today's program. Your rights are on trial is written edited and produced by Philip Yeah. Do you have rights that guarantee you reasonable treatment when being questioned by the police. This question will be answered next week in the case of the psychiatry question. Join us next week at the same time for another authoritative discussion and authentic dramatization of a Supreme Court case in which. This is the Radio Network.