Brief for Petitioner — Lanza v. New York

IN THE

Supreme Court of the United States

October Tetm, 1961

HARRY LANZA,

Petitioner

nen anes

NEW YORK,

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

LO —— mes

* BRIEF FOR PETITIONER

ee Eee —— — —— - — —e ae

Leo PFEFFER

15 East 84 Street

New York 38, N.Y.

Atiorney for Petitioner

Jacosp D. Fucusserc

Of Counsel.

—

Gee 32 Cast Press Inc., 421 Hudson St., N. ¥Y —ORegon 5-4540

TABLE OF CONTENTS

Cpe TRSNO akties hiiseses Me TAPE CRED

PT POT PTT Tl ee ey ry Foor e ay

Constitutional Provisions Relied Upon ............

SRUOEG TWORIGROE 6 06 iccctvcusecndehecicawes Wes

enn OE Tie Cs soc cn wd bose woe Few ads alc

“2? The Fourth Amendment and the States ....

I. The Immorality of the State’s Conduct .......

II. The Relevance of Morality ...................

III. Moyglity and Due Process of Law ...........

SS isc bs od belo ade cw honk hawk kseoen

AvuTHoritigs CITED

Cases

- Barrows v. Jackson, 346 U. S. 249 ...........2....

Blau v. United States, 340 U. S. 159 (1950) ........

Braden v. United States, 365 U. S. 431 ............

Chambers v. Florida, 309 U. S. 227 ................

Emspack v. United States, 349 U. S. 190 (1955) ....

il

Goldman v. United States, 5316 U.S. 129 (1942) 2... 7,8

Pere V. TRO Aan CU. Gi BO ois ck wera nawes ues ?1

Lanza v. New York State Joint Legislative Commit-

SO Tk, rear ee NeW ee eee et er ae

Lanza v. New York State Joint Legislative Commit-

ae a a et grt le Nad sey ees ee es 13

Leyra v. Denno, 347 U. S. 306 ....3.......... 20, 26, 27, 31

Mapp v. Ohio, 367 U. S. 643 (1961) ............. 10, 11, 28

Meinhard v. Salmon, 249 N. Y. 568 ................ 19

Nardone v. United States, 308 U.S. 838 ....00...... 31

National Association fortthe Advancement of Colored

People v. Alabama, 357 U.S. 449 ............... 20

Olmstead v. United States (277 U.S. 458) 2.2.12, 17, 22, 27

On Lee v. United States, 343 U.S. 747 (1952)...... 1, 8, 28

oo ae a) Be oe | ee ep ree ry |

Peopie v; Detore, 262 KN. E13 as ve vce css acess 24

People v. Oinan, 7 A. D. 2d 119, aff’d 6 N.Y. 2d 715 27

Peopie v. Richter4s Jewels, 291 N.Y.151 0.0.0.2... Zi

People v: Variane, & M.-Y, 30 DOU os ccc cesses 27

Powel v. Atsbems, 267 U. &. 43... 0c kc sc ccnccccccs 26, 27

Quinn v. United States, 349 U.S. 155 (1955) 0.2... 12

Matter of Reuter (Consentino), 4 A. D. 2d 252, 164

Mee ore GL Pee CC e ek rh as 4, 13,19

Rochin v. California, 342 U. S. 165 ...:......22, 24, 25, 27

Shelley v. Kraemer, 334. U. 8. 1.0... 60.06000000%- 21

Silverman v. United States, 365 U.S. 505 .......... 1:39

Silverthorne Lumber Co. v. United States, 251 U.S.

RSs Pn Tae ae A AL Pe eng ee UM irs GR ne 31

Span W: Wyman, Soe U. 7S 6 cc cc cee acces sss 30

Wilkinson v. United States, 365 U.S. 399 0.0.0.0... 30

waar ¥; © Cente. 206 U. be Be cic sw ceases 22

ill

PAGE

Statutes and Constitutional Provisions

POULIN MUMOIIINORG oe oi 5 has cece 2.0, passim

Nit OUONRONE Gch cc kh lions va cress ci ccna ene

POUPtCCMEM AIIOTIICIE oi ce or ese ces 2o5, passim

MeKinney’s 1958 Session Laws of New York, p. ISio 13

Article 73 of the Penal Law, entitled ** Kavesdrop-

ping,’’ by Chapter 881 of the Laws of Mor... 6... 14,17

PRGAE Ba ee Se oa Eek ae os OA Lae awe 14

ge eS 8 GN 2A 05 RR ea Pn ae ee 3

Miscellaneous

Cushman, Civil Liberties in the United States, 140 .. Is

Douglas, Almanac of Liberty, 353 ................ Is

N.Y. Legislative Document (19598) No.9, p. 24 2... is)

New York Times, June 26, 1957, p. 64, col. 1, cited in

Comment: ** Abolition of Eavesdropping Exeep-

tion to ‘he Attorney-Client Privilege,’? 27 Fordham

Pam BeWLOW ce LEUGY 2d esac eh vee ease a ees 14

Pfeffer, The Liberties of an American, 195-109 2... 24

Rosenzweig, The Law of Wire Tapping, 52 Cornell

L. Q. 514, 83 Cornell a) ae ee be are ree re Is

Report of the New York Joint Legislative Committee |

on Privaey of Communications, Legislative Docu.

ment—

We a ie 22 Oa a ere Ae ea rane 14

Bs ee a ae 2 Mie 2S Ne ee ae a a4

a RS RNG ts A Eee eaten Pah enrages 16

PEG Pe ccs Teast aaey sR pas i)

Sen. Rep. No. 1304, 76th Cong. da Sess,-(1940) .:... 17

“The Past is Prologue,’ 38th Annual Report of the

America) Civil Liberties Unien (1997-1958), p. S4 14

iv

PAGE

Westin, The Wire-Tapping Problem, 52 Col. L. R. 215

SERS SS Ae i ytaraae nee Sie tea ges gay hang or sag 1s

Wiretapping, Eavesdropping, and the Bill of Rights,

Hearing Before the Subeommittee on Comstitu-

tional Rights of the Committee of the Judiciary of

the United States Senate pursuant to S. Res. 254,

Sth Congress, Second Session (1958) .......... 1s

IN THE

Supreme Court of the United States

October Term, 1961

No. 256

+

Harry Lanza,

Petitioner

—V.—

New York

BRIEF FOR PETITIONER

Opinions Below

The opinion of the Court of Appeals of the State of New

York (R.300)* is reported at 9 N.Y. 2d S05. ‘Phe opinion

of the Appellate Division of the Supreme Court of the State

of New York, First Department (R. 292-298) is reported at

10 App. Div. 2d 315. The Court of General Sessions

rendered no formal opinion. Its oral decision is contained

in the Record at pp. 261-268 and its oral judgment at pp.

268-274.

Jurisdiction

The decision, judgment and remittitur of the Court of

Appeals of the State of New York, the highest tribunal in

References are to pages in the Transcript of Record 1

—

the State, were entered on April 27, 1961. The remittitur

was amended and the amended remittitur (R. 301) was

entered on July 7, 1961. A petition for certiorari was filed

with the Clerk of this Court on July 17, 1961 and certiorari

was granted on November 20, 1961.

The jurisdiction of this Court is invoked under Title 28,

United States Code, Section 1257, Petitioner's cause is

founded upon rights secured by the Constitution of the

United States, and specifically the Fourteenth Amendment

thereto.

Constitutional Provisions Relied Upon

The Petitioner relies upon the Fourth and Fourteenth

Amendments to the Federal Constitution.

Fourth Amendment

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the person or things to be seized.

Fourteenth Amendment

Section 1... nor shall any State deprive any person

of life, liberty or property, without due process of law...

Question Presented

This case raises the single question whether a stay may,

consistent with the Fourteenth Amendiment to the federal

Constitution, compel a witness before a legislative inves

tigation committee to testify regarding information ac

quired by the state through the means of an electronic

eavesdropping device, concealed in a room at a sfate pent

tentiary set aside for conferences between the prisoner-

and their attorneys and relatives and where the witnes~

conferred with his incarcerated brother.

Statement of the Case

There is no dispute as to the basic facts relevant to the

question presented to this Court on this petition.

On February 5th, 1957, Joseph Lanza, brother of the peti

tioner, herein, was arrested on a warrant charging him with

violation of parole (R. 66). Joseph Lanza was thereupon

imprisoned in the jail of Westchester County, New York.

At the request of New York Parole Board oflicers, the Shes

iff of Westehester County, members of his staff, and. offi

cials in charge of the jail installed a concealed electronic

microphone, connected to a recording device, in a room in

the jail normally set aside for private consultations and

conferences between the prisoners, their attorpevs, rela

tives and friends. Between the period from February oth

to February 19th, a number of conversations betwoen

Joseph Lanza and his attorney, his wife, and his brother,

the petitioner herein, respectively, were thus recorded (R.

175, 170-171; Lanza ve New York State Jomt Legislative

Committee, 3. N.Y. 2d 92, 101; Report of the New York

Joint Legislative Committee on Privacy of Communica-

tions, Legislative Document (1958) No. 9, 99, 24-25). Spo

cifically involved in this case is the recorded conversation

between Joseph Lanza and the petitioner herein held on

February 13th, 1958 (R. 8).

On or about February 19, 1957, Joseph Lanza was re

stored to parole by decision of James Stone, a member of

the Parole Board (R. 66). This action by Commissioner

Stone gave rise to an investigation by the New York Joint

Legislative Committee on Government Operations (herein

ufter referred to as the Joint Committee) (R. 65-67, 88-91).

The Joint Committee was originally created by a resolution

of both houses of the State Legislature in 1955. It. exist

ence was thereafter broadened by action of the Legislature

(R. 50-51).

Transcripts of the recorded conversations between Jo

seph Lanza and his wife, attorney and broth or eame into

the possession of the Joint Committee and each of the four

of them was summoned to appear before the Committee for

questioning. All four refused to answer questions put to

them by counsel for the Committee arising out of the inter-

cepted conversations. No punitive action was taken against

either Joseph Lanza or his wife. An effort was made to

adjudicate the attorney guilty of contempt but the New

York Appellate Division affirmed a lower court decision

holding that the attorney was not guilty of contempt in

his refusal to answer the questions (Matter of Reuter

(Consentino), 4 A. D. 2d 252, 164 N.Y. S. 2d 534).

Harry Lanza, the petitioner herein, was called before the

Joint Committee for questioning on three occasions. The

first was in executive session, the second at a public scssion

(R. 187). In the course of the second session, the Joint

Comuuittee voted that proceedings to punish hin for eon

toamnpt be instituted against him (CR. 95-97, 191-195). There

after, on June 19, 1957, he was again called before th

Joint Committee and nineteen questions were put to him,

all of which he refused to answer (RL 4-107).

The Joint Committee voted to grant immunity to the peti

tioner, but (on advice of his counsel) the petitioner per

sisted in his refusal. The petitioner was thereatter indicted

for nineteen violations of Seetion 1330 of the New Yors

Penal Law (refusal to testify before a legislative coninit

tee) and, after a trial without a jury, was found Quilty on

all counts. He was sentenced to imprisonment for one vear

on each of the counts, but nine of the sentences were ordered

to be served consecutively, so that the term for whieh peti

tioner Was sentenced was ten vears (Ro 2569-275), a sen

tence modified by the Appellate Division to run concur

rently, and as so modified was affirmed (R. 292-298). The

Court ot Appeals, the State’s highest court, affirmed the

conviction by a bare majority vote of four to three (RL 500),

Summary of Argument

The conduct of the officials of the State of New York

would have constituted a violation of the Fourth Amend

ment had they been officials of the Federal government and

accordingly constitutes a violation of the Fourteenth

Amendment. Information secured by such means may no!

constitutionally be emploved by the State of New York for

any purpose, including the coerced elicitation of further in

formation.

Even if the action of the State officials cannot be said te

constitute a violation of the Fourth Amendment, it is nev

6

ertheless conduct that shocks the conscience and offend-

the community’s sense of fair play. As such it violates the

dlue process mandate of the Fourteenth Amendment. [ts

fruits are tainted and may not be used to coerce further

information from the victim of the immoral conduct.

Whether the State’s action constitutes an unlawful search

and seizure or a violation of the Fourteenth Amendment’s

inherent mandate of fair play, it is immaterial that the

forum which sought to elicit further information from the

petitioner was a legislative committee rather than a jd:

cial tribunal. The-command of the Bill of Rights extends

equally to all agencies of government, legislative no less

than judicial.

Nor, under the circumstances of this case, is it materia!

that the first and last questions put to the petitioner by

the Joint Committee did not expressly refer to the inter.

cepted conversation er purport to be based thereon. Were

it not for that interception the petitioner would never have

been called before the Joint Committee or, if called, could

not have constitutionally been compelled to answer incrimi-

nating questions even if tendered immunity from prosecu-

tion.

Argument

l. The use of the electronic device in the jail constituted

an unreasonable search and seizure and the information

thereby procured could not constitutionaliv be used by the

State of New York to coerce further information.

1. Violation of the Fourth Amendment

The last word spoken by this Caurt on the compatibility

of the use by government of concealed electronic eavesdrop-

ping devices and the right of privacy guaranteed by the

Fourth Amendment is to be found in the case of Sil rermdit

v. United States, 365 U.S. 505, decided during the las!

term of this Court.

ln previous cases, the Court ruled that use of these de-

vices did not violate the Federal Communications Act,

whose bar is limited to telephone wiretapping. In Goldmai

v. United States, 316 U. S. 129 (1942) the Court ‘refused

to upset a conviction based upon evidence obtained by

means of a deteetaphone placed on the wall of an offies

adjoining the defendant's. In On Lee v. United States, 343

U.S. 747 (1952) the same result was reached where a micro-

phone was concealed in the elothing of an informer who

entered the defendant's store and engaged him in conversa

tion.

In the Silreerman ease the defendants’ convietion for

gambling in the District of Columbia was based on evi-

dence obtained through the use of a ‘*spike mike,’” an

electronic device connected te a heating duct in the defend-

ants’ house, which in effect turned the duet into a giant

microphone running through the entire house. The device

Was inserted into a party wall separating the defendants’

house from a vaeant house next to it, access to which the

Federal agents gained with the consent of the owner.

In arguing against the conviction, the defendants urged

the Court to overrule the Goldman and Ou Lee cases and

hold that any use of a concealed electronic eavesdropping

device violated the Fourth Amendment's guaranty against

unreasonable searches and seizures. While the Court was

unanimous in reversing the conviction, the majority did not

find it necessary to go that far. It felt that Goldmaw and

bs]

On Lee were distinguishable, although, as the Court pointed

out, a ‘‘distinction between the detectaphone employed in

Goldman and the spike utilized here seemed to the Court

of Appeals too fine a one to draw’’ (365 U.S. 505, at 512).

We suggest that the present case affords the Court the

opportunity to do what it refused to do in Stlverman—

expressly overrule Goldman and On Lee. We believe that

the time to do so has arrived.

However, as in Silverman, it is not necessary to do this

in order to reverse the conviction here in issue. The basic

principle asserted in Silverman is so applicable in the pres-

ent case that adherence to Silverman reguires reversal here.

It is important to note that while two of the Justices in

Silverman concurred in the decision on the ground that the

unauthorized physical penetration into petitioner’s prem-

ises constituted technical trespass, the majority of the

Court specifically refused to base the decision on that

ground. The majority found it unnecessary *‘to consider

whether or not there was a technical trespass under the

local property law relating to party walls.’’ ** Inherent

Fourth Amendment rights,’’ the Court said, ‘*are not in-

evitably measurable in terms of ancient niceties of tort or

real property law’’ (865 U.S. 505, at 511).

The basic rationale of Silverman lies in governmental

intrusion without legal warrant into a place where the

citizen has a right to be and has a right to privacy. Whether

an action in trespass would survive a demurrer under

archaic standards of common law pleading is not the de-

cisive factor. What is decisive is that there is an intrusion

into a privacy upon which, according to contemporary

standards of morality and decency, the government has no

right to intrude. The term ‘unreasonable’ in the Fourth

Amen iment has a sweep broader than that measured by

technical legalisms. ;

&

Sirerman, We submit, is indistinguishable from the pres

ent case. When the prison authorities in Westchester made

available to Joseph Lanza and his visiters space in the

jail, that space became Lanza’s home. It was A place where

he was entitled to privaey and a place where governmenly/

s

had no lawful right to intrude. _——

Actually, the wrong committed by the government in the

present case was more egregious than that committed in

Siiverman, and the search and seizure more unreasonable

here than there. In Silverman there was no more than a

surreptitious intrusion upon privacy. There was there ne

misrepresentation, no deception, no breach of a relationsfiip

of trust. The government in Silverman did not provide the

defendants there with a place to meet and confer; it did

not impliedly—but realistically—assure them of privacy.

They were free to meet and conter wherever they wished,

In the present case Joseph Lanza was the ward of the

State of New York. He could not choose for himself a place

to confer with the petitioner and others in privaey and

confidence. The State supplied him with such a place and

implicitly but actually represented to him and to those that

conferred with him that they could do so Ww privacy and

confidence. In Silverman there was but trespass (in the

braad sense of the word);"here there was trespass and

breach of trust. If the conduct in Silecrman was a violation

of the Fourth Amendment, the conduct here was much

more so.

10

2. The Fourth Amendment and the States

Whatever doubts may have previously existed, Vapp v.

Ohio, 367 U.S. 645 (1961) now makes it certain that the

Fourth Amendment's right of privacy is enforceable against

the States through the due process clause of the Fourteenth.

Conduct forbidden to the Federal government by the Fourth

Amendment is forbidden to the States by the Fourteenth.

It follows from this that since the conduct committed by

the State authorities in the present case wou! have con-

stituted a violation of the Fourth Amendment had it been

committed by Federal authorities, it necessarily constitutes

a violation of the Fourteenth having been committed by

State authorities.

It follows too from the Mapp case that the information

so procured by the State of New York could not constitu.

tionally be used by it to coerce further information. The

New York Court of Appeals’ per curiam affirmance-cid not

discuss the substantive issues of the caseetimiting itself

to the question of the correctness of tie sentence. The

Appellate Division, however, indicated clearly that the basis

of its decision was that ** Material evidence obtained by il-

legal means is nevertheless admissibie’’ (R. 295), and it

may be assumed that this too was the basis of the affirmance

by the majority of the Court of Appeals.

As we will seek to indicate later, even before the Mapp

case this did not constitute a correct statement of the ap-

plicable Federal constitutional law as expressed by this

Court. The standards of due process imposed upon the

States by the Fourteenth Amendment wonld preclude use

vf the immorally acquired information even if the mandate

of the Fourth Amendment were not applicable to the States.

.

1]

However, Mapp v. Ohio makes it clear not only that con-

duet forbidden to the Federal government by the Fourth

Amendment is likewise forbidden to the States by the

Fourteenth, but also that information obtained by a State

in violation of the Amendment may not be used agaist _

the consent of the person wronged by the violation. What

the Court said in Mapp (367 U.S. 463), is particularly

pertinent here:

“The ignoble shorteut to convietion left open to

the State tends to destroy the entire system of con-

stitutional restraints on which the liberties of the

people rest. Having onee recognized that the right

to privaey embodied iu the Fourth Amendment 1

enforceable against the States, and that the right to

be secure against rude invasions of privacy by State

officers is, therefore, constitutional in origin, we ean

vo Jonger permit that right to remain jn empty

promise. Because it is enforceable in the same man-

ner and to like effect as other basic rights secured by

the Due Process Clause, we can no longer permit i

to be revocable at the whim of auy police officer who,

in the name of law enforcement itself, chooses to

suspend its enjoyment. Our deéision, founded on

reason and truth, gives to the individual no more

than that which the Constitution guarantees him, to

the police officer no less than that to which honest

law enforcement is entitled, and, to the courts, that

jadicial integrity so necessary in the true administra

tion of justice.”

It need hardly be stressed that it is constitutionally im

material that the information illegally acquired herein was

sought to be used initially by a legislative committee rather

than a judicial tribunal. In the first place, the legislature

was unable to elicit the sought information by itself and

~)

found it necessary to invoke the coercive powers at the

judiciary. In such case, assistance by the judiciary in this

endeavor would make it a partner to the violation of the

Fourth Amendment. As Mr. Justice Brandeis said in his

dissenting opinion in Olmstead v. Cuited States (207 U.S.

438, 483): ‘When the Government, having full knowledge,

sought through the Department of Justice, to avail itself

of the fruits of these acts in order to accomplish its own

ends, it assumed moral responsibility for the officers? crimes

(citing cases). And if this Court should permit the Gov-

ernment by means of its officers’ crimes to effeet its pur-

pose of punishing the defendants, there would scem to be

present all the elements of a ratification.”’

In the second place, th ndate of the Fourth and Four

teenth Amendments extenus to all agencies of government.

Indeed, as the opening words of the Bill of Rights (**Con-

yress shall make no law’’) indicate, it was the legislature

that was first in the minds of the authors. The basie guar-

aunties of the Fifth Amendment, particularly the ban on

coerced confessions, is applicable to legislative committees

no less than to judicial tribunals, even though the Fifth

Amendment, unlike the Fourth, has the apparently limuit-

ing words ‘tin any criminal case.’" Blau vy. Cuited States,

240 U.S. 159 (1950); Emspack v. United States, 349 U.S.

190 (1955); Quinn v. United States, 349 U.S. 155 (1955).

There is at least as much reason to subject legislatures to

the limitations of the Fourth Amendment as of the Fifth.

The right of privacy, that most important of rights of

civilized men, is as vulnerable to invasion by legislative

investigating committees as by prosecuting officials, and

requires constitutional protection in the one cave no less

than in the other.

13

In any event, our concern here is with the Fourth Amend-

tent as rendered applicable to the States by the Four-

teenth. That amendment, it uecd hardly be noted at this

late date. extends to every organ of State government,

legislative no less than judicial or executive.

Il. The conduct engaged in by the State of New York

did not measure up to the standards of due process and

the information thus procured could not constitutionasy

he used by the State to coerce further information.

I. The Immorality of the State’s Conduct

The action of the State officials in causing the conversa-

tions between Joseph Lanza and his wife, brother and at

torney to be electronically intercepted and recorded in the

Westchester County jail was immoral and reprehensible.

There is hardly a forum which has reacted to it that has

not been shocked by it and has not condemned it.

The Appellate Division, in its opinion of affirmance as-

sumed that the aetion was ‘‘reprehensible and offensive”

(R. 295). Earlier it had called the action ‘*gross and in-

excusable’? (Lanza v. New York State Joimt Legislative

Committee. 3A. D. 2d 531), and ‘flagrant and unpreee-

dented’? (Matter of Reuter (Consentino:, 4 A. D. 2d 2:2,

255, 164 N.Y.S. 2d 554). The Court of Appeals had char-

acterized it as a ‘‘gross wrong’? (Lanza v. New Fork State

Joint Legislative Committee, 3 N.Y. 2d 92, 101). Counsel

for the Joint Committee commendably made no effort. to

justify or even excuse the action, but on the contrary has

himself ealled it ‘*repulsive and repugnant” (Ibid). The

vovernor of the State called it ‘unwholesome and danger-

ous’? (MeKinner's 195% Session Laws of New York, p.

1875). The Chairman of the New York Joint Legislative

i¢

Committee on Privacy of Communieations called the inei-

dent ‘*deplorable*’ and reported that it had ‘* brought forth

a storm of protest from lawyers, some of whom had not

previousiv been audibly concerned about . . . efforts to

protect the people's right of privaey’’ (Report of the New

York Joint Legislative Committee on Privaey of Conn

nications, Legislative Document (1958) No. 9, p. 25).

It was reported that after the incident at the Westele.-

ter County jail became public, a New York judge found it

necessary to release a prisoner held without bail so that

he would have an opportunity to consult with his attor-

ney, since the judge could not be sure that there was any

jail in the State where the prisoner could feel secure against

electronic eavesdropping (New York Times, June 26, 1957,

p. 64, col. 1, cited in Comment: ** Abolition of Eavesdrop-

ping Exception to the Attorney-Client Privilege,’’ 27 Ford-

ham Law Review 390 (1958)). It was also reported that

after the incident became known, the State Commissioner of

Correction warned all sheriffs and jail wardens that eaves-

dropping on persons is illegal (**The Past is Prologue.”

38th Annual Report of the American Civil Liberties Union

(1957-1958), p. 84).

The most striking indication of the extent and degree to

which the conscience of the community was shocked by the

incident at the Westchester County jail was the New York

State Legislature’s amendment of Article 73 of the Penal

Law, entitled ‘Eavesdropping,’ by Chapter 881 of the

Laws of 1957.' This statute made it a criminal offense to

? Penal Law Section 638 provides in part:

A person: ... -

2. not present during a conversation or discussion who wilfully

and by means of instrument overhears or records such conversa-

tion or discussion, or who ais, authorizes, employs, procures or

permits another to do so, without the consent of a party to such

conversation or discussion; . . . is guilty of eavesdropping.

15

do what the Westchester County jail officials did. A num-

ber of important points, all relevant to this case, must be

noted in respect to the statute and its enactment.

First, the statute was enacted with remarkable speed atter

the Westehester County jail incident beeane known, The

incident became public towards the end of February, 1997.

On March 21st (before the petitioner herein was questioned

by the Joint Committee), a conference was held between

leaders of the Legislature and Counsel to the Governor

and the text of the proposed law was agreed upon (Report

of New York State Joint Legislative Committee to Study

Illegal Intereeption of Communications, Legislative Docu-

ment (1957 No. 29, p. 28). The bill was then quickly adopted

by the Legislature and approved by the Governor, as Chap-

ter 881 of the Laws of 1957 (Ibid, p. 54). The speed with

which the statute was adopted after the incident became

known—a speed which can be explained only in terms of

spontaneity—attests to the deep revulsion experienced by

the people of New York by reason of the incident. If, a-

it is generally assumed, law reflects the moral standard-

of the community, there can be little doubt that the people

of the State of New York deemed the conduct of the jail

officials to be grossly immoral.

Second, it was not, as the Appellate Division seems to

imply (R. 295-296) and the State of New York argues here,

the infringement on the attorney-client) relationship, o1

even the husband-wife relationship that shoeked the pub

lic conscience. The statute made electronic eavesdropping

a crime without regard to the relationship between the per-

sons whose private conversation was electronically inter-

cepted.

16

Third, the Legislature, reflecting the indignation of the

public, left no doubt as to who was intended to be encon:

passed by the prohibition. In language tor which we have

been unable to fing any precedent, Section 741 expressly

defines the word ‘*person’’ to include ‘tany law enforce-

ment officer.”” A more emphatic repudiation of the con-

duct of the jail officials can hardly be conceived.

Fourth, and perhaps most important, the intensity of

public revulsion is attested by the fact that electronic eaves-

dropping was made not merely a crime, but a felony.

.

It is not merely interesting, but significant and instrue-

tive to compare that fact with the fact that the crime with

which the petitioner herein was charged is only a misde-

meanor. It is not unreasonable to suggest that publie*policy

and morality would be beTter served if a misdemeanor were

to remain unpunished than if conduct deeincd felonious

should be committed by State officials.

This conduct was an act of gross or aggravated immor-

ality, that is, it was doubly wrong. In the first place, it

was an act of electronic eavesdropping, an invasion of

privacy which has long been deemed offensive by American

public opinion. In the second place, it constituted an act

of wilful deception and entrapment, a betrayal of a didu-

ciary relationship and a breach of trust.

Electronie eavesdropping is the latest development in the

reprehensible art of wiretapping. This has been weil stated

by the New York State Joint Legislative Committee to

Study Illegal Interception of Communications (Legisla-

tive Document (1957) No. 29, p. 15):

“It was soon after the introduction of the tele-

phone that our legislators in 1892 recognized the

wi

danger of eavesdropping and made it a felony to

tap a telephone wire. Their alertness has been jus-

tified by later events. In more recent times we have

not been as foresighted as they.

“Lately the art of electronies has made great ad-

vance. Microphones, sound recorders, and transmit-

ters have become compact and supersensitive. Tech-

nically it is easy to secrete a microphone in a reet!

and overhear what goes on there. Such surveillance

has become a commonplace of fact and fiction, par-

ticularly with respeet to the police states of Kurope.

It causes revulsion in all of us.””

Article 73 of the Penal baw places electronic eavesdrop-

ping and wiretapping in the same eategory of offense.

Wire tapping, as indicated above, has been a felony in

New York almost as long as the telephone has been in use.

Forty years ago, Mr. Justice Holmes called wiretapping

a ‘‘dirty business”’ (Olmstead v. United States, 277 US.

438, 470 (1928)), and that phrase has become so popular

in characterizing wiretapping as to indicate universal

agreement with it in the American democratic comunity.

Mr. Justice Brandeis, referring to abuses which in a large

measure motivated our War for Independence, expressed

the opinion that ycrits of assistance and veneral warrants

are but puny instruments of tyranny and oppression when

compared with wiretapping’’ (Ibid, p- 476). A Commit.

tee of the United States Senate characterized wiretapping

as an ‘unethical device’* that ‘*may lead to a variety of

oppressions that may never reach the ears of the courts”

(Sen. Rep. No. 1304, 76th Cong. 3d Sess. (1940)). Mr. Jus-

tice Douglas expressed approval of Mr. Justice Brandeis’

characterization of wiretapping as ‘*the most oppressive

intrusion into the right of privacy that man had yet in-

ls

vented.”’ Wiretapping, he said, *‘wherever used, has a

black record. Its invasion of privaey is ominous. It i-

dragnet in character, recording everything that is said.

by the innocent as well as by the guilty. It ransacks the!

private lives, overhears their confessions and probes their

innermost secrets’? (Douglas, Almanac of Liberty, 55°),

355).

These are but a representative few of the hundreds of

instances that might be cited of similar condemnation. of

Wiretapping and electronic eavesdropping as practices ob

noxious to American concepts of fairness and deceney.

Professor Robert E. Cushman of Cornell sumed it up ty

stating that in the United States there is ‘ta widely held

conviction that wiretapping is a dishonorable enterprise, a

device of totalitarian governments with which our govern:

ment should not contaminate itself’ (Cushman, Civil Lil

erties in the United States, 140. See also, Rosenzweig, The

Law of Wire Tapping 32 Cornell L. Q. 514, 33 Cornell L. «.

73 (1947); Westin, The Wire-Tapping Problem, 52) Col.

L. R. 215 (1952); Wiretapping, Eavesdropping, and the

Bill of Rights, Hearing Before the Subcommittee on Con-

stitutional Rights of the Committee of the Judiciary of the

United States Senate pursuant to S. Res. 234, ssth Con

gress, Second Session (1958)).

The fact of electronic eavesdropping is but one aspect

of the immorality committed at the Westchester County

jail; the other lies in the betrayal of the trust whieh the

jail officials impliedly sought and received from Joseph

Lanza and his family. The Chairman of the New York Join:

Legislative Committee on Privacy of Communications wa-

both accurate and vivid when he stated that ‘tat the request

of Parole Board officers, a * bugging’® trap was set for Lanza

1y

and his family? ON. Y. Legislative Doenment (1958) No.

“op. 24.) The jail officials could have refused to allow

Joseph Lanza to communicate with his family. Or thes

could have insisted that a jail offieial be present durin:

the conversation, or even perhaps that a court stenographes

he present fo record stenographically what was said dy

Lanza and his family. They did none of these things. In

stead they supplied Lanza with a room and impliedly but

very really represented to him that he could converse wit!

his family there with the freedom of privacy.

This was a misrepresentation, an aet of fraud. Bivew

Worse, it was a betrayal of a fiduciary relationship. Joseph

Lanza was in the control artd custody of the jail offieial-

He could not leave to converse with his family in the pri

vaey of his home. He was in a literal sense the ward of the

warden of the jail; he had only such liberty of communica

tion as Was accorded to him by the warden. In sneha sity

ation, and particularly in view of the fact that the warden

was a public official, a duty was owing higher than the

‘morals of the marketplace" (ef. Meinhard Vv. Salon, 249

N.Y. 568).

It is true that the relationship of trust wi< to Joseph

Lanza and that it is his brother, Harry, who is the peti

fioner in this case. But the representation was made not

only to Joseph Lanza but to Marry as well. And, more im

portant, unless the ambit of protection encompasses thos:

Wh» conversed with Joseph Lanza it would be an illusory

protection for him. It would be of little benetit to him that

he could not lawfully be coereed into testifying in respect

to the conversation, if the other party to the conversation

could be (Matter of Reuter (Consentino), 4 A. De 2d 252,

lt N.Y. S. 2d 534; ef. Barrows v. Jackson, 346 U.S, 249.

a. @

Te eS ea Seer rtrt—‘

20

255 22; National Association for the Adrancem@nt of Co!

ored People v. Alabama, 357 U.S. 449, 459).

Il. The Relevance of Morality

The State’s prosecuting attorney, who like counsel to

the Joint Committee, is to be commended for making no

effort to justify o: excuse the electronic eavesdropping at

the jail, nevertheless took the position apparently accepted

by the courts below, that the immorality of acquisiiion was

irrelevant to the petitioner’s duty to answer. He said:

‘This trial is not held for any moral evaluation... . That

ix not the issue here, whether it is morally offensive o1

repugnant between us. The question ts, is the evidence:

legally admissible’? (R. 209). **We are not,”* he said, **con-

cerned with the morality of the practice alluded to”

(R. 258).

The Appellate Division adopted this contention and held

that ** Material evidence obtairied by illegal means is never-

theless adnmrissible’’ (R. 295). We submit that the moral

issue cannot be so easily disposed of. Morality is not

divoreed from law. Ever sinee the patriarch Abraham

peaded with God, ‘*Shal! not the Judge of all the earth do

what is right?’ (Genesis 18:25), man has recognized a duty

on the part of sovereignty to act morally towards its sub-

jects. Where the sovereignty is a democracy, which is the

servant of and responsible to its citizens, the duty becomes

a binding obligation, whether imposed by constitution, stat-

°

ute or common law. The ‘clean hands" doctrine, devel

oped by the branch of the Anglo-American legal system

which has traditionally reflected the conscience of the soev-

ereign, rests on the principle that the law will not allow it-

self to be used as a means to further immoral ends. This

Court has held that the ‘tequal protection of the laws”

clause of the Fourteenth Amendment forbade a state to

allow its tegal machinery to be used to further the immoral

ity of racial discrimination through the enforcement of

racial restrictive covenants (Shelley vo ARracmer, 354 US

1). Although the Constitution contains no ‘*equal protec-

tion’? clause addressed to the Federal government, the

(ourtenevertbeless refused to permit the Federal courts to

entoree such a¢ovenant because the obligation of morality

on the part of government extends beyond specifie consti.

tuiional or statutory language (Hurd v. Hodge. 334 US

24).

In Lanza v. New York State Jomt Legislative Committes

SN. Y. 2d 93), all seven Judges of the Court of Appeals

eal: revulsion at the conduct of the State officials

responsible for the interception. Three of the seven felt

so strongly about it that they would have applied the truly

extraordinary and unprecedented remedy of enjoining the

Joint Committee from making public the contents of the

recortiing. The other four, a bara majority, felt that under

the principle of division ef powers among the several

“branches of our government, the judiciary could not by in-

junction interfere with the functions of the legislature act-

ing Within its jurisdiction.

_ But the principle of division of powers has reciprocal

» obligations of restraint. If the judiciary cannot enjoin the

legislature from publicizing or utilizing the reeording not-

withstanding the immorality of its acquisition, neither can

the legislature compel the judiciary to be party to the im

morality by coercing replies based on the recording. If

this were not so, we would have the English system of legis-

22

Jative omnipotence rather than the American system of an

independent judiciary with a right and indeed a duty to

review the acts of the legislature to determine not merely

if they conform to constitutional requirements but also to

the basic principles of morality that underlie all constitu

tions.

Ill. Morality and Due Process of Law

We submit that the due process clause imposes a mandate

of morality upon government, and that the immorality of

the acquisition of the information here in issue precludes

its use by government.

In Wolf v. Colorado (3388 U.S. 25), this Court defined

‘*due process of law’’ as *‘the compendious expression for

all those rights which the courts must enforce because they*

,

are basic to our free society.’’ Foremost of these rights,

said Mr. Justice Brandeis, is the right of ggivacy, *‘the right

to be let alone—the most comprehensiv@ of rights and the

right most valued by civilized men’’: (Olmstead v. United

States, 277 U.S. 488, 478).

‘The security of one’s privacy against arbitrary intru-

sion by the police,’ the Court said in Wolf v. Colorado,

supra, **is basie to a free society. It is therefore implicit in

‘the concept of ordered liberty’ and as such enforceable

against the States through the Due Process Clause

Accordingly, we have no hesitation in saying that were a

State affirmatively to sanction such police incursion into

privacy it would run counter to the guaranty of the Four-

teenth Amendment.”’

In Rochin v. California (342 U. S. 165), the Court un-

animously upset a State conviction based upon use as evi-

CIA yg Pisnieana oi Dalia.

»”

-~

dence of morphine tablets foreibly removed from the de-

fendant’s stomach by means of a pump, Much of the

language used by the Court in that case is particularly”

appropriate here:

** However, this Court too has its responsibility.

Regard for the requirements of the Due Process

‘Clause ‘ineseapably imposes upon this Court an ex

ercise of judgment upon the whole course of the pro-

ceedings (resulting in a conviction) in order to ascer-

tain whether they offend those canons of deeoney

and fairness which express the notions of justice

of English-speaking people even toward those

charged with the most heinous offense.” These stand-

ards of justice are not authoritatively formulated

anywhere as though they were specifies. Due pro-

cess of law is a summarized constitutional guarantee

of respect for those personal immunities which, as

Mr. Justice Cardozo twice wrote for the Court, are

‘so rooted in the traditiogs and conscience of our

people as to be ranked as fundamental, or are im

plicit in the concept of ordered liberty.’

** Applying these general considerations to the cir-

cumstances of the present case, we are compelled to

conclude that the proceedings by which this convie-

tion was obtained do more than offend some fastidi-

ous squeamishness or private sentimentalism about

combatting crime too energetically. This is conduct

that shocks the conscience. . . . _—

‘It has long since ceased to be true that due pro-

cess of law is heedless of the means by which other-

wise relevant and credible evidence is obtained . .

(Due process imposes) the qeneral requirement that

the States in their prosecutions respect certain de-

cenctes of civilized conduct (p. 169-173). (Emphasis

added.)

y

x

24

Due process of law, the Court said further in the Rochix

case, bars use by the State of information acquired by

methods that ‘*offend the community's sense of fair play.”’

The due process clause came into our constitutions as the

culmination of a long struggle te impose upon government

those obligations of decency and fair play that the com-

munity has the right to expect from the agency of society

which fixes by the force of law the moral standards of the

community. (See, Pfeffer, The Liberties of an American,

153-159.)

We do not believe that the Rochin case can be distin-

guished on the ground that in that case foree was- used

whereas here we have only guile. In the first place, there

is little to choose between force and fraud in the hierarchy

of immorality; they are equal in the extent to which they

shock the conscience of the democratic community and

offend our Anglo-American sense of justice and civilized

conduct. In the seeund place, it is noi entirely correct to

say that force is absent from the present case; it is more

accurate to say that force has been added to fraud. What

was begun by deceit was sought to be carried forward by

force. To the concealed microphone there had been added

the revealed threat of nineteen years imprisoument. In

th Rochin case the act of force took place in a hospital

ward; in the present case it took place in the hearing room

of the Association of the Bar in the City of New York.

What is involved in the present case is net (as in the Rochin

case) merely the admissibility or inadmissibility of im-

morally acquired evidence; what is involved is the power

of the State to aggravate and extend the immorality by

foreing testimony based on the evidence. We submit that

such conduet is no less offensive to concepts of justice and

fair play than was the conduct in the Rochin case.

20

Ifowever, the conclusive answer to any contention that in

the absence of brute force there can be no viclation of the

‘due process"? clause is to be found in the ease of Leyra v.

Deno (S47 U.S. 556), a case which, we suggest, presents

exactly the same issues of constitution aud conscience that

are found in the present case. In that case a confession was

obtained ina police station through apparently sympathetic

and solicitous interrogation by a psyehiatrist who was in

troduced to the suspeet by the police as a physician whe was

going to give him medical relief from his mental sutferings.

Police officials were secreted in an adjoining room and were

able by means of an electronic microphone and recording

machine (as in ihe present ease) to listen to and record ihe

conversation between the two. At the conelusion of thy

conversation, the officials immediately came into the room

and, on the basis of the admissions of guilt made orally to

the psychiatrist, they were able to induce the accuse! io

sign a full confession. The Court found the fundamental

facts in the ease to be indistinguishable from: those im the

Rochiv ease, and held violative of the **due process” clause

not only use of the recorded transeript of the oral conver-

sation, but also the written confession that cmanated

from it.

Leyra v. Denno, we submit, is indistinguishable from the

present case. In both guile and deceit rather than foree

was utilized. In both a relationship of trust existed. In

both the immorality at the source tainted the secondary

product (the signed confession in Leyra, the questions put

to the petitioner in the present case). Leyra v. Denno, we

submit, requires reversal of the judgment herein.

The proseeuting attorney laid great stress in the trial

on the faet that the action of the Westchester County jail

26

officials was not illegal or criminal when it took place (1.

209). The Appellate Division, too, appears to have con:

sidered that faet to be signifieant (R. 295). We submis

that this was error.

[usofar as the due process clause of the FPourteentl:

Amendment is concerned, the fact that no state statute has

heen violated is, if not irrelevant, certainly not determina-

tive. Indeed, the entire purpose of the Amendment was

to forbid conduet that state law permitted. The Amend-

ment would be meaningless if its mandate could be avoided

by the simple process of enaeting a State statute lewalix-

ing what would otherwise be a deprivation without due

wa

process.

That, at least, is how this Court has consistently inter

preted the Fourteenth Amendment. in Powell vy. Alabama

(287 U.S. 45), the Court held that the ‘due process"? clause

was violated by the failure of a State to accord a defend.

- ant’s counsel in a crimjnal case adequate time io prepare

for trial, even though the conduet of the trial eourt was

completely consistent with State law. In Chambers v. Flor-

ida (309 U.S, 227), the Court set aside, as violative of due

process, a conviction based upon a confession obtained

from a prisoner who had been held incommumieado ever

though no state law was violated thereby. Most Important,

in Leyra v. Denno, which is so close on’‘its facets to tie

present case, there was no violation of the State’s erimina!

law in the action either of the psychiatrist or the police

officials.

Both the Appellate Division (R. 295-296) and the trial

judge (R. 260) held that the illegality or immorality of

the method by whieh evidence is obtained does not render

it inadmissible in a eriminal proceeding. Presumably, the

Court of Appeals accepted this holding. We admit that

application of this principle to the ease at bar was erro

neous tor two reasons.

In the first place, it is not always true that the admiss

bility of evidence is not Cependent upon the method of its

acquisition, Rochin v. California, Leyra v. Denno. Powell

Vv. Alabama, Chambers v. Florida, and a host of other ease

(see, Pffetfer, The Liberties of an American, ehapter 6),

establish) fatriv conelusively that evidence wequired — by

means that shock the conscience or are bevond the Limits

set biveut concept of ordered liberty are not admissible in

a criminal proceeding. In the present case, we believe that

the conduct of the Westchester County jail oflieials was no

less reprehensible and no less bevond the concept of or.

dered liberty than the conduct condemned in the Mochin.

Leyra, Powell, Chambers and other eases.

In the second place, the issue here is not. the adimissi

bility of evidence. The New York decisions (Peoplr vy.

Adams, 176 N.Y. 351; People v. Defore, 242 N.Y. 12:

People v. Richter’s Jewels, 291 N.Y.151: People v. Variane

Oo N.Y. 2d 391,394; People v. Oinan, 7 A.D. 2d 119. aff'd

6 N.Y. 2d 715) relied upon by the Appellate Division (LR.

290-296) rest upon a situation in whieh the illegality or

immorality has been completely consummated when the

issue of admissibility arises. The evil has been done and

the only question is whether a jury may or mav uot take

cognizance of information that resulted therefrom. — [1

balancing **the social need that crime shall be repressed”

against ‘*the social need that law shall not be flouted by

the insolence of office’? (People v. Defore, 242 N.Y. 13. 24-

28

25), the New York courts have, unlike the Federal court-.

decided in favor of the former need. But they have decided

so only to the extent of allowing the evidence to be placed

before the jury by the prosecutor. They have never gone

so far as to compel the vicwim of the wrong actively to

participate in its extension. They have never held that the

immorally acquired evidence could legally be used to cocrce

further information from him.

The New York courts have long recognized that the use

of tainted evidence to procure a conviction is evil. They

have felt constrained to permit its use as a necessary evil

in order to detect and punish criminals and thereby deter

further commission of crime. We submit, however, that the

evil should be confined to its necessity. It should not be

extended by expansion through further questioning. Above

all, it should not be extended by coercing participation in

its expansion by the victim of the evil.

As Mr. Justice Frankfurter said in On Lee v. United

State (343 U.S. 747, 758-759) :

‘The law of this Court ought not be open to the

just charge of having been dictated by the ‘odious

doctrine’, as Mr. Justice Brandeis called it, that the

end justifies reprehensible means. To approvedegally

what we disapprove morally on the ground of prac-

tical convenience is to yield to a short-sighfed view

of practicality. . . . The co rast between morality

professed by society and immorality practiced on its

behalf makes for contempt of law. Respect for law

cannot be turned off and on as though it were a

faucet.’’

In any event, Mapp v. Ohio, supra, makes it quite clear

that the New York decisions cited by the Appellate Divi-

sion are no longer determinative and that a State may not,

consistent with the Fourteenth Amendment. use immorally

acquired evidence against the victim of the unmorality,

III. Absence of Xpress reference to the intercepted Col

Versation in the first and last questions put to the peti-

toner does not remove the taint of uumoralitv. or avoid

the ban of the Fourteenth Amendment.

In its brief in opposition to the petition for certiorari

herein the State of New York laid major emphasis (it was

Point I of the brief) on the claim that since the first and

nineteenth questions put to the petitioner were general and

did not specifically refer to the intercepted conversation.

the conviction herein can be sustained irrespective of the

infirinity of the other counts of the indictment2 This, we

submit, is erroneous.

It is important to note that every question asked the

petitioner was inextricably connected with and grew out of

the information gained thréugh the eavesdropping, Had

there been no eavesdropping, the petitioner would never

have been called to testify before the Joint Comumattee. In

ceed, had there been no eavesdropping it is highly doubtful

that the petitioner could constitutionally have been coerced

to testify before the Committee. In upholding contempt

convictions against witnesses subpoenacd to appear before

”

* _ The first question was: “OQ. On February 5, 1957, your brother

Joseph Lanza was arrested and returned to prison charged with a

violation of parole. Tell the comnuttee, please, any and all efforts

extended by you to assist in obtaining the release of your brother

Joseph Lanza on parole or his restoration to parole.” (R.6)

* The last question was: “Q. Mr. Lanza, please tell the name of

anybody with whom you spoke during the month of February 1957

about the restoration to parole of your brother Joseph Lanza?”

(R. 30)

+

30

leyislative investigating committees, this Court has stressed

that the witnesses were not called before the committer-

as part of a dragnet procedure but that in cach case there

were reasonable grounds for believing that the particular

witness called had information relevant to the inquiry being

conducted by the committee.®

But for the intereepted con-

versation, the Joint Committee would have had no grounds

for believing that the petitioner had such information. Peti-

tioner Was a reputable business man wit! no prior criminal

record (R. 297). Other than the intercepted conversation,

the only thing that connected him with the subject of the

Joint Committee’s investigation was the fact that he was

Joseph Lanza’s brother and visited him once in jail—a

natural fraternal act hardly sufficient to constitute reason-

able ground for belief that he had information relevant

to the inquiry. |

We submit that subsidiary or derivative questions asked

of the petitioner stand on no different ground from those

that repeat the intercepted conversation im hace verba. As

3 Cf. Wilkinson vy. United States, 365 U.S. 399, 412 (It is to be

emphasized that the petitioner was not summoned to appear as the

result of an indiscriminate dragnet procedure, lacking in probable

cause for belief that he possessed information which might be help-

ful to the subcommittee. As was made clear by the testimony of

the Committees’s Staff Director at the trial, the subcommittee had

reason to believe at the time it summoned the petitioner, that he

was an active Communist leader engaged primarily in propaganda

activities. This is borne out by the record of the subcommittee hear-

ings, meluding the content of the Staff Director's statement to the

petinoner and evidence that at a prior hearing the petitioner had

been identified as a Communist Party member.) ; Braden vo United

States, 305 U.S. 431, 435 ("The subcommittee had reason to be-

lieve that the petitioner was a member of the Communist Party and

that he had been actively engaged in propaganda efforts.) ; ( phaus

v. Wyman, 300 U.S. 72, 79 (".. . the Attorney General had valid

reason to believe that the speakers and guests at World Fellowstup

might be subversive persons within the meaning of the New Hlamp-

shire Act.”).

Dee ee ee ee en De i a ee 2 —— —_

3]

this Court stated in Nardone vo Uiited States (B08 US

ooS, O41), ‘tthe knowledge gained by the Government's owt

wrong cannot be used by it simply beeause it is used deriva

LN ely.”” Or, as stated in Silverthorne Lumber Co. \. United

States (251 U.S. 385, 392), ** The essence of a Provision

forbidding the acquisition of evidence in aw certain way |

not merely that the evidence so acquired shall not be used

before the court, but that it shall not be used at all.’ In

Leyra v. Denno, supra, the Court held violative of the duc

process Clause not only use of the recorded transeript ©!

the oral conversation, but also the written confession thas

emanated trom it.

We submit that the State of New York could not consti

tutionally purge itself of its immorality or tmumunize itsel!

from the operation of the Fourteenth Amendment by the

expedient of sandwiching the seventeen patently tainted

questions between an apparently innocuous first and las!

question, Constitutional obligations would be meaningless

if they could so easily be evaded.

CONCLUSION

For the reasons set forth herein the conviction of

petitioner should be reversed and the indictment against

him dismissed.

Respectfully submitted,

Leo Prerrer

15D Kast 84 Street

New York 28. N.Y

Attourue “Woter i fifignes

Jacop D. Frucuspers

Of Counsel,