Respondents Brief — Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation of New York

ee ing RG

“°?

SUPREME COURT. U.S APR 13 joe

(39056)

ne a

Supreme, Court of the Ynited Bates

‘ October Term, 1967. .

No. 823

Unirormep Saniration Men Association, Inc., et al.,-

Petitioners, .

—against— .

‘ |

| CoMMISSIONER OF SANITATION OF THE

| Crry or New York, et al.,

4 | : Respondents,

ON WRIT OF CERTIORABI TO THE UNITED STATES COUBT

. OF APPEALS FOR THE SECOND CIRCUIT

— ee

——

-

7 RESPONDENTS’ BRIEF a

J. Lez Rank

- Corporation Counsel of the.

. City of New York,

na : Attorney for -Respondents

: ce and Post Office Address

- Municipal Building

Pie . "Borough of Manhattan

New York, New York 10007

‘

Norman Rep.icu,

Joun J. LoFuin,

Rosert C. Dinerstern,

of Counsel.

(re a

<a Casz Puzss Inc., 421 Hupsom Sr., N.Y.—ORegon 5-4540-

| Prelininary Statement .. = SOLES ae Poe eae BS

| Questions Presented ines in &e Srey iceukeede teen e°

Relevant Bistatie J+. c-e0clecee Te ee Pieters ——

The Facts ../..:. cekwae coenescese ASAE aaah 3¢

Opinions EE ae ito eek - 5-

SuMMARY OF Anoument:

L. Respondents have not violated petitioners’

privilege against self-incrimination errr 6.

II. The wiretap in this case did not violate peti- :

toners’ Fourth Amendment rights er Prey aoe

Point Ap wy in New York, in witiiaitabeetive

practice and through judicial interpretation, Char-

‘ter §1123 meets the constitutional requirements of -—

due process expressed by this Court in Slochower_ .

v. Board of Education and subsequent decisions... * 10

- Powt Il—The use of a wiretap in this.case by the

’ Commissioner of Investigation did not violate peti-

tioners’ constitutional rights under the Fourth and

Fourteenth Amendments ...............2e00e00% 17

A. Berger and Katz Should Not Be ‘Given Retro- |

active Application LLebchicbasaes cewnes in sa 17

_B. The Tap Did Not Taint the Subsequent Pro-

A Ec aey on ae eye er ee een 25

C. Petitioners Fail to Establish a Violation of ~

* Fourth Amendment Rights Under fhe Stand-

‘ards Established in Katz and Berger ....... 28

Ne

| .: |

i . PAGE

;.° De The Alleged Violation of Section 605 of Fed-

* eral Communications Act Dées Not Invali-

a date the Dismissal of Petitioners .......... 32

4 CONCLUSION .........+00+eeeee: ere Tee eee ey ios 33 ©

SMe oo nook on chee xe sens Se rere 84

| AUTHORITIES CITED ©

. Cases |

__ Agnello v. United States, 269 U.S. 20 (1925) ....:. 30

Beilan v. Bd. of Ed. of Phila., 357.U.S. 399 (1959) . .6, 11, 12

-. Berger v..New York, 338 U.S. 41 (1967) 6,17, 24, passim

_ Brinegar-v. United States, 338 U.S. 160 (1948) .... 31

_ Caimara v. Municipal Court, 387.U.S. 523 (1967)... 31

- Carroll v. United States, 267 U.S. 132 (1925) ...... 31

_ Conlon v. Murphy, 24 AD2d 737 (1st Dep’t., 1965) .. . 12

| Escobedo v. Illinois, 378 U. S. 479 (1964) :....°..20, 21, 23

) Gardner v. Broderick, 20 N-Y 2d 227 (1967) ....-... 5; 13

4 Gardner v. Murphy, 46 Mise. 2d 728 (Sup. Ct., N.Y.

a ERE ere PT Te rer Pe eT Teer 12

4 Garrity v. New Jersey, 385 U.S. 493 (1967) ........ 7, 14, 15

; Gideon v. Wainwright, 372 U.S. 335 (1963) ........ "19

* Gilbert v. California, 388 U.S. 363 (1967) ......... 20

4 Griffin v. Illinois, 351 U.S. 12 (1956) .............. 19

) Harlem Check Cashing Corp. v. Bell, 296 N.Y. 15. |

4 SE UKGSEVKUAs eb Row es ubadaecehekbeeaeecunt 21

3 Hollingsworth v. United States, 321 F. 2d 342 (10th

rrr errr a Troe 19, 27

{ Jackson v. Denno, 378 U.S. 368 (1964) ceri wenas aes

Johnson v. New Jersey, 384 U.S. 719 (1966) . “PF 18-2

Katz v. United States, 389 U.S. 347 (decided Decem- —

ber 18, 1967) ............ eee ... 9,18 96, pecs

Ker v. California, 374 U.S: 23 (1962) ............. 30

Lerner v. Casey, 357 U.S. 468 (1958) .:..... of 6, 11, 12

Linkletter v..Walker, 381 U.S. 618 (1965) ....... 7, 8, 18, 19

Mapp v. Ohio, 367 U.S. 643 (1961) ........ ere

Miranda v. Arizona, 384 U.S. 436 (1966) .....:..20, 21, 23

Murphy v. Waterfront Commissien of New York, ~-

378 U.S. 52, 79 | rarer ane seeees ea

Nardone v. United States, 308 U.S. 338 ......... » + 9) 20-20 _”

_ Nelson, et al. v. County of Los Angeles, 362 U.S. 1 a

(1960) ....... pn thccnhdiwesbaecewun awed 6,11, 13-14 ©

People v. Kaiser, 21 N y. 2d. _ 23) 5 ae bees 22, a4

People v. Rodriguez, 11 N.Y: 2d 279 (1962) ......... 26.

People-v. Stemmer, 298 N.Y. 728 (1948),-aff’d. by.an.

equally divided court, 336 U.S. 963, pétition for

_ rehearing denied, 337 U.S. 921 ..:....... wpe veene 21

Pugach v. Dollinger, 365 U.S. 458 (1961) .. AY Saale - + 32

Rogers. v. United States, 330 F. 24 535 (5th Cir.

eo merererres LWaeeh cue kadeaee es veks Keuke sh

Sch artz v. Texas, 344 U.S. 199 (1952) ero 10, 32

_ See vx Seattle, 387 U.S. 541 (1967) ".....:........-- 31

Slochower v. Board of Education, 350 U.S. 551

EER EEE TAPES ah RAID jovcsa RD

Spevack v. Klein, 385 U. S. 511 tO) Pees ere 7, 14, 16 -

_ Stovall v. Denno, 388 U.S. 293 (ROUT) casccivass . - 7-8, 18-20

Tehan v. Shott, 382 U.S. 406 (1966) .........:..7,8, 18, 19

United States v. Collins, 349 F. 2d 863, cert ,den., 383 |

MMT TIE oe so ves ccc ca cadens > a

United States v. McGavie,°337 F. 2d 317 (6th Ge =. 5:

BE dvdusnneassaxnevhbudustesses veeuwiun ane -. 9,27

United States v. Tane, 329 F. 2d 848 (2d Cir. 1964) 26

United States v. Wade, 388 U. 8. 218 (1967 ete macee's 20

Williams v. Ball, 294 F. 2d 94 (2 Cir. 1961) cert.

den., 368 U.S. 990 ..... rere pore osegeceeesees 1.22 -.

| on

: e

2

Sire -

PPE Tee ae

; iv

| Statutes |

‘ oo - "| PAGE

_ 28 USC. §2281 ........ ati a teestisesee 0

Bat U.S.C; $4001, 605 «.....0.....5.45...0 ‘sooe+ 02, 9-10, 52

| New York City Charter: ’ ©. 2° | eae ae

2 Section 1423 (previously 903) | Seas ed conn .%

i New me Code of Criminal isis

Section 818-8 4... erie i cacekee Se ee

New oom Btate Civil Service Law § ere towhan

| U. 8. Constitution

‘ Fourth Amendment Te 8, 17; 18, 21, 24, 28, 30-32

_. Fifth Amendment ......... a a eaee 15, 19, 20, 21, 26

qt Fourteenth Amendment , a PTT T TTT e ‘Gersitene See

r as

4 Bee ee

; 7)

}

* Spree Court af the Yuited States:

iio Term, 1967 © ¢

No. 823

"=

rv

UnirorMep Sanitation Men Assocration, Inc., et al.,

4

ae ae - Petitioners,

er . + —against— Sr,

CoMMISSIONER OF SANITATION OF THE

_ Crry or New York, et al.,

oF Respondents.:

ON WRIT OF.CHRTIORARI TO THE UNITED STATES COURT -

e OF APPEALS FOR THE SECOND CIRCUIT , lia.

a

dy.

7

RESPONDENTS’ BRIEF ©

Preliminary Statement

Petitioners ask this Court, upon a writ of certiorari

‘granted on January 29, 1968 (R. 91a),* to review a judg-

‘ment of the United States.Court of Appeals for the Second

Circuit, entered on September 20, 1967 (R. 90a-91a). That

judgment unanimously affirmed a. judgment of the United

States District Court for the Southern District of New

York which dismissed petitioners’ compiaint. for failure to

state a claim on which relief can be granted (R. salle

* References designated ow sil ‘to the Joint Appendix filed in

this Court. ; , P

z

2

j

—

“~ ° Questions Presented ,

1. Maya municipal employee’ be dismissed for refusing

- to answer questions concerning the proper performance of -

his duties on the ground that his answers would tend' to in-

* eriminate him, ‘or for withholding information by. refusing

; to sign’a waiver of immpnity from prosecution when called

- to testi *about his employment by a grand j jury, and then -

- failing to justify or explain his action at a hearing where

q he was given full opportunity to do sot :

2. Wn petitioners? dismissals rendered unlawful be-

cause the City Commissioner of Investigation, pursuant to

court order, intercepted and recorded telephone conversa-

tions over a telephone leased by the City to transact official

business, to which conversations certain of the petitioners

were parties, even though no evidence derived from the

* interceptions was offered against the petitioners i in any sub- |

+. sequent proceeding?

+

Relevant Statutes

*«

The primary statutes involved, Section 1123 of the New

York City Charter, Section 813-a of the’ New York Code

of Criminal Procedure, Federal Communications Act of

1934, 47 U.S.C. §§ 501, 605, and New” York State Civil

Service Law § 75, are set forth in the — infra, pp.

34-39.

The Facts -

The niaterial facts are not in dispute. Petitioners were

formerly employees of the New York City Department of

Sanitation assigned to the Marine Transfer Station at 91st

Street and ° the Kast River in Manhattan. In the fall of ;

. /

1966 the City Commissioner of Investigation learned that

Sanitation Department employees were failing to charge

private cartmen proper fees for the use of City facilities

at the Mariné Transfer Station. Insteady the employees

were alleged to have diverted fees to their own use result-

ing in a loss of income to the City of hundreds of thousands

of dollars (R. 5a, 71a-72a).

In the course of his investigation, the Commissioner ob-

tained authorization frdm Supreme Court, New York

County, under the provisions of Section 813-a of New York

Code’ of Criminal Procedure, to tap a telephone-(AT 9-

7935)-leased by the Department of Sanitation for the trans-

action of official business at the Marine Transfer Station.

This official City telephone was the “— line tapped i in the

investigation (R. 72a).

In November, 1966, the Pater dr his deputy

questioned petitioners concerning their duties and employ-—

ment (R. 41a-65a). Prior to being questioned they were: §

advised- of their right to counsel, their right to remain

silent and not be compelled tg be a witness against them-

selves, and that anything they said could be used against

them, They were also apprised of the provisions of Sec-

tion 1123 of the New York City Charter which provides for

dismissal where a City employee fails to testify concerning

the property, government or affairs of the City or his official.

conduct on the ground that his answer would tend to in-

criminate him (R. 73a-74a). ‘Twelve of the petitioners re-

fused to answer claiming the constitutional privilege against

self-incrimination. Three of the petitioners were inter-

rogated and gave answers ‘without claiming the privilege

against seff-incrimination (R: 6a).

*<

aire

t i keen We Te. Cte drew

” .

prem ecemitoeici + ->-- aie re anal ale ene palptatitainals MO rch A (nea

Lal ’ 7

- ;

On December 2, 1966, the Commissioner of Sanitation

suspended the petitioners. Those who, had refused to tes-

tify on the basis that their answers would tend to incrim-

inate them were advised that their suspensions were based

on Section 1123 of the City Charter. The others were ad-

vised that their suspensions were based on information

received from the Commissioner of Investigation concern-

ing irregularities arising out of their employment (R: 7a,

45a, 58a).

On December 14, 1966, petitioners commenced this action

' for declaratory judgment and injunctive relief. As of that

data petitioners had been suspended but not.dismissed from

their employment. Subsequently, on December 16, 1966,

the Commissioner of Sanitation issued formal charges

under Section 75 of the New York Civil Service Law against

the twelve petitioners who had refused to answer questions

put to them by the Commissioner of Investigation or his

deputy. At the:time of argument before the District Court

no hearings had been held on these charges (3a, 56a-70a).

After argument of the case in the District Court but

prior to the argument in the Second Circuit Court of Ap- —

peals the following relevant events occurred.

Hearings were held on the charges made against the -

twelve employees who invoked the privilege against self-

* incrimination in their appearance before the Commissioner ~

of Investigation. The only evidence offered against them

was the transcript of proceedings before the Commissioner

- of Investigation. Petitioners were represented at the dis-

ciplinary proceedings by the same counsel who gppeared for

them in the District Court and on their appeal. No tran-

scripts, setetings or other evidence obtained through a

3

.

?

wiretap were offered against petitioners or réceivéd in evi-

dence during the disciplinary proceedings. ¢ “¢

The three petitioners who did not assert the privilege

against self-incrimination when. called before the Commis-

sioner of Investigaticn were later summoned to appear

before a grand jury and asked to sign waivers of: im-

munity. Each of them refused to sign a waiver. Subse-

‘ quently, they were served with amended charges by the —

Commissioner of Sanitation to~ the effect that they. had

violated Section 1123 of the New York City Charter by

_ their refusal to waive immunjty before the grand jury.

In the hearings conducted by the Department of Sanita-

tion the charges against those three petitioners related

solely to their refusal to waive immunity before the grand

jury. No evidence or testimony of any kind based ‘upon

-a-wiretap was offered against them.

At the disciplinary proceedings ssitliamand offered no

testimony. to explain their refusal to answer questions put

to them by the Commissioner of Investigation or his deputy

or their refusal. to sign. waivers of immunity. Their de-

_ fense rested solely on claims of unconstitutionality or ille-

gality in the, proceedings.

Each of the petitioners. was dismissed after the hearings

for violations of Section 1123 of the New v York City Charter.

Guinions Below

The District « ‘Court on respondents’ motion dismissed §

the complaint 9n grounds of abstention. ‘Subsequent to the

District :Court decision the New York State Court of Ap-

peals decided Garduer v.. . Broderick, 20. N Y 2d 227 ry

* which authoritatively. construed Section 1123 of the New. 7

4 York City Charter. The Second Cireuit Court. of Appeals

‘ noted that this construction removed the federal abstention

- | question from the case and proceeded to consider the merits.

* In its opinion, the Circuit Court held “ {t]here was no inva-

4 sion of appellants’ constitutional rights when they were

_ @ dismissed from their employment for refusing to answer

. questions as to their conduct of, their jobs’’ (R. 87a). That

+ Court also. held that there had been no ‘‘trespassory intru-

4 sion into private, constitutionally protected premises’’ as

- : was found to exist by this Court in Berger v. New York, 388

% : U. S. 41 (1967). The Circuit Court stated (R. 88a) :

a

x

+ « $e also hold that appellants’ claim based on the

-Commissioner’s wiretap was properly dismissed. No

: . Violation of the Federal Communications Act, 47

: USC §605 * * * or deprivation of rights under the

‘ Fourth Amendment has been established. ’’

‘SUMMARY OF ARGUMENT

I; Respondents have not. violated petittonene? privilege

against self-incrimination.

Since this Court’s decision in | Slochower v. Board of Edu-

cation, 350 U.S. 551 (1956),.the courts of New York have

4 made the implied constitutional guarantee of a full adminis-

4 trative hearing an integral part of the disciplinary proce-

@ dure when Charter. § 1123 is invoked aoe a public em-

ployee.

This approach is enalabini with the decision. of this ee

Court in Lerner v. Casey, 357.U.S. 468 (1958) ; Béilan v. Bd.

of Ed. of Phila., 357 U.S. 399 (1959) ; Nelson, et al,v. County

of Los Angeles, 362 U.S. 1 (1960). These cases upheld the -

3

. dismissal of a public employee where he was asked questions .

of legitimate concern to his employer, refused to. answer

those questions and then failed to explain that refusal in a

subsequent administrative hearing held for that purpose.

This Court’s recent decisions in Garrity v. New Jersey,

385 U.S. 493 (1967) and Spevack v. Klein, 385 U:S. 511

(1967), do not’ support petitioners’ contentions. Both the

opinion of the Court (fn. 3, at p. 516) and the concurring

opinion of Mr. Justice Fortas (at p. 519), in. pene dis-

tinguish that case from the one at bar.

In light of the decision | in Garrity, there is even less reason

to support the cqntention that a public employee may refuse

to answer questions concerning the performance of his

duties, and retain his job. As a result of Garrity, a public

employee need not fear subsequent criminal prosecution |

based on any testimony given to his employer or a grand |

jury. |

IL. The wlieten in this case did not wn ee

- Fourth Amendment rights. |

A. The decisions of this Court i in Berger v. New York,

388 U.S. 41 (decided June 12, 1967) and Katz v. United

States, 389 U.S. 347 (decided December 18, 1967), should

not -be given retroactive ‘application. Under the tests estab- -

lished by this Court in Linkletter v. Walker, 381.U.S. 618

(1965), Tehan v. Shott, 382 U.S. 406 (1966), Johnson v. New

| Jersey, 384 U.S. 719 (1966), and Stovall v. Denno, 388 U.S.

293 (1967), the constitutional standards for eavesdrop war-

rants, set forth in Berger.and Katz, should be applied pro-

spectively to trials or proceedings commenced after the date

of. these decisions. :

‘i :

ba dhe aA Dit aN on RSE Shas Wis thin OSES Halle SI SEM

i

The basic premise of this test is that new judicial construc-

tions ‘of constitutional provisions have been applied retroac-

tively whére the purpose served by the new rule is preserva-

tion of ‘the ‘‘integrity of the truth-determining process at

trial ...’’ Stovali v. Denno, 388 U.S. at 298. This was not

the case in either Berger or Katz where there was no ‘doubt

as to the reliability of the evidence barred by the new rules.

At the time of the tap involved here, and thereafter until

the decision in Berger, law enforcement officials could not

ascertain the standards which that’ decision established for

eavesdrop warrants ; and until Katz, they believed that non-

trespassory eavesdrops were beyond the scope of Fourth —

Amendment protection. ‘Thus, there would be a substantial -

adverse affect on the administration of justice if Berger and

Katz were applied retroactively, thereby invalidatirg thou- |

sands of prosecutions based on- what were, believed to be

legal eavesdrops and wiretaps. Respondents relied on a

state statute that: had been held to be constitutional.

’ Nor is the Court presented with a situation where the

~ rules of Berger and Katz should be applied to cases on direct

appeal at the time of those decisions. Unlike the situation .

whic’, the Court faced in Linkletter v. Walker and Tehan v.

Shott, no decision of this Court since Berger and Katz has

applied these cases on direct appeal. Therefore, the Court ne |

should apply the same test it enunciated in J ohnson v. New

Jersey and Stovall v. Denno and apply the new rules to pro-

ceedings commenced ‘after the decisions in Berger and Katz.

-B. Even if the doctrines of Berger and Katz are applied.

- retroactively, the wiretap did not taint the subsequent pro-

ceedings. ;

No evidence secured through the tap was ever used

against petitioners. The tap was not used to identify peti-

e

9

ticners as suspects, nor as the basis for thé investigation.

‘Instead, the tap was the source of certain questions which

petitioners refused to answer. Under these circumstances,

’ any alleged taint, caused by the tap, has been dissipated.

Nardone: v. United States, 308 U.S. 338; United States % £.

McGavic, 337 F. 24 317 (6th Cir. 1964); Rogers v. United

States, 330 F. 2d 535 (5th Cir. 1964); Hollingsworth v.

United States, 321 F, 2d 342 (10th Cir. 1963). -

C. Petitioners have not established a violation of their

, Fourth Amendment. rights under the doctrines of ‘Berger

and Katz. ‘This Court has not held that warrants meeting

Fourth Amendment standards are required in all cases

where conversations are seized. Under the facts of this case, .

. petitioners could not reasonably expect that calls.made on

the phone at the 91st Street Marine Transfer Station would

- be free from interception by their employer during an au- §—.

thorized investigation into irregularities regarding the per-

formance of their duties. — |

~ Although not indicated in the record, the facts here differ

markedly from these presented in Katz. If the Court should

_ reach the constiistional question of the validity of the tap

under the Fourth Amendment, the case should be remanded

to the District Court in order to develop a record which

. would permit a sound constitutional determination as to F

whether the-tap of this government-owned phone, in light B

of all the circumstances, including the regulations governing E

the use of this phone, was an unconstitutional search and

seizure.: ; | can .

_D. While an unconstitutional wiretap would be inadmis- &

sible in a state court proceeding under Mapp 'v. Ohio, 367

U.S..643 (1961), a finding of a violation of § 605 of the Fed-

) eral Communications Act alone, does not ‘sustain peti-

tioner’s claims.

Under Schwartz v. Texas, 344 U.S. 199, the exclusionary |

‘rule applicable to violations of constitutional provisions by

state officials,,does not apply to such violations of federal .

statutes. Further,'for the reasons cited in B, above, there

is no causal connection between the tap and petitioners’ sub-

sequent dismissals.

- POINT I

hd _

_ As applied in New York, in administrative practice.

* and through judicial interpretation, Charter §1123

| meets the constitutional requirements of due process __

! expressed by this Court in Slochower v. Bow>d of Edu- :

cation and subsequent decisions. ere Ole

In Slochower v. Board of Baucation, 350 U.S. 561: (1956),

this Court was called upon to review a dismissal pursuant

to §903 of the New York City Charter (predecessor to the

:present §1123). Slochower, a Brooklyn College professor,

was summarily dismissed pursuant to §903 for failing to —

answer questions concerning his membership in the Com- ~

munist Party before a Senate. Subcommittee on Internal

| . Security. This Court overruled the- holding of the: N ew

York Court of Appeals that under §903 an Assertion of the

privilege against self-incrimination in defiance of the Char-

ter provision.is equivalent to a resignation, saying:

° 4 : 2 ’

‘Tt is one thing for the city authorities themselves

to inquire into Slochower’s fitness, but quite andther

for his discharge to be based entirely on events oc-:

- curing before a federal committee whose inquiry. was

announced as not directed at ‘the property, affairs

11

©

or government of the city, “eer official conduct of

city employees.’ * * * .

‘‘The State has broad powers in the olntiun and

discharge of its employees, and it. may be that proper

inquiry would show Slochower’s continued employ-

ment to be inconsistent with the real interest of the

State. But there’ has beén no such inquiry here. We _ |

hold that the ‘summary dismissal of appellant vio-

lates due process of law.’ 350 U.S. at pp. 558-559.

Subsequent to Stedheawer this — has held that state

statutes authorizing the dismissal of public employees who

~ fail: to answer questions in an investigation of matters. of :

legitimate concern to the state or agency involved do not . es)

violate - due process ‘where a hearing is. held prior to. dis-

_ _missal,_Lerner-v. Casey, 357.U. S. 468 (1958); Beilan v. -

Bd. of Ed. of Phila., 357 U. S. 399 (1959)5 Nelson, et al. v..

County of Los Angeles, 362 U. S.1 (1960). In each of these ~

' eases, appellants were dismissed pursuant to the relevant ~

statute, after a hearing before an appropriate administra-

tive body at which time they were given the opportunity to

explain their refusal to testify. The ultimaté’ dismissal in

each instance was based not on the mere refusal to testify

but-on the breach of legitimate conditions of employment—

- candor and integrity—that the refusal reflected. This is —

not at all the built-in inference of guilt imputed to an em- -

ployee’s invocation of the privilege which this Court con-

| demned i in Slochower-and Nelson.

In the case at bar, upon their refusal to testify before

- the Commissioner of Investigation or their failure to waive .

immunity and testify before the Grand Jury, each of the |

fifteen petitioners. was subsequently given a full hearing -

aban hei RG a ale A Nl ae ath al ah z

before the Commissioner of, Sanitation. This hearing dealt

with petitioners’ refusal to answer questions concgrning —

the performance of their job.

It should be noted that in Lerner and Beilan Mr. —

Justice Douglas, with whom Mr. Justice Black concurred,

based his dissent, covering both\cases, on the propriety of

the government concerning itself with the opinions and be-

liefs of its employees. 357 U.S. at p. 415. The dissent, how-

ever, recognized the right ef the government.to inquire into

the ‘‘actions of men’’ such as the fitness of the public

employee for his job for reasons of health, promptnéss, rec-

-- ord for reliability. 357 U.S. at P. 415.

Dissenting in a separate opinion, in Lerner, Mr. Justice

Brennan stated:

. “But can we suppose that a subway conductor

‘«would be branded a security risk if he refused to

, answer a question about his health? Of course the

answer is no, although the question is plainly rele-

_ . vant to his qualifications of employment. It may well

, be that it such a case the State would be fully justi-

‘ fiell in discharging the employee as ‘untrustworthy

and unreliable.’ ¥ 357 U.S. at p. 422.

Since the Slochower waiia: the New York Courts have -

made the implied constitutional guarantee of “‘proper in- '

quiry’’ an integral part of the disciplinary procedure when-

ever §1123 is invoked against a public employee. Gardner

v. Murphy, 46 Misc. 2d 728. (Sup. Ct., N.Y. Co., 1965) ; Con-

lon v. Murphy, 24 AD2d 737 (1st Dep’t.,.1965). In Gardner,

the court reviewed this Court’s decisions which recognized ~

both the interest of the government in the loyalty of its

employees and the need to protect the constitutional rights .

of those emaployees, and found: ~

13

‘Logic thus iis the post-Malloy v. H ogan (378

US. 1) applicability to State proceedings of the doce

trine enunciated in Slochower v. Board of Educ. (350.

U. 8.551) ; ; Automatic dismissal from public employ-

ment predicated solely upon-one’s invocation of the

Amendment privilege against self-incrimina- |

tion is proscribed by the United States Constiraiaen

* * *.?? 46 Mise. 2d at p. 734. \

oe e-e 6 e f

‘<Tf the mere statement of present refusal to waive

one’s Fifth Amendment rights is interpreted as a

prima facie rather than a conclusive basis for dis-

‘charge, the subject provisions are not repugnant: to

constitutional mandates as mirrored by the United

States: Supreme Court pronouncements. ” Ibid., at

| P. 736. can

¢

| The New York courts consider notice and a hearing in

proceedings under §1123 as not merely a pro forma requipe-

‘ment, but as a substantive administrative remedy afforded

petitioners in this case. This reflects the concern expressed

by this Court in Slochower, that absent such a hearing:

‘No consideration is given to such factors as the

subject matter of the questions, remoteness of’ the

period, to which the art directed, or justification for

exercise of the privilege.’’ 350 U.S. at p. 558. es

The decision of the New York Court of Appeals in Gard- '

ner V. Broderick, 20 N Y 2d 297- (1967), now before {his

Court, would appear’ to haye ended any uncertainty as to

. thé New York Court of Appeals’ interpretation of §1123.

In upholding Gardner’s dismissal under § 1123 for fail-

ure to waive immunity and testify.before a grand jury, the

Court of Appeals cited Nelson v. County of Los Angeles,

Meme iid and NRSC s ao AT RET

a

q

e

;

.

14

362 U.S. 1 (1960) for the proposition that there was no vio-

lation of the privilege against self-infrimination where the

employee had a hearing and the information sought con-

cerned the performance of his duties as a public-employee.

- Petitioners - seek to detantindes the proceedings before

the Commissioner of Investigation and the Grand Jury

‘as criminal investigations rather than disciplinary pro-

ceedings (Pet. Br., pp. 15-16). Such characterization is

- neither helpful nor relevant. | oe

“The City employs over 300,000 persons in various jcbs

_of varying responsibility. These employees are supérvised,

and ‘their conduct on the job investigated, in a number of ©

ways. If the inquiry here were limited merely to peti-

tioners’ competency to perform their tdsks, then the only

‘proper official to make such inquiry would be the Commis- |

sioner of Sanitation or his authorized deputy. ‘But the’ ~

inquiry here, though related to the performance of peti-

tioners’ duties, also concerned misconduct amoungng to a

criminal act. In such instances, the protection of the City’s

interests is entrusted to the Commissioner of Investigation.

- Further, any testimony given by City employees before a

“ grdnd jury must be,-and was, limited to matters concerning ©

their conduct as City. employees, i in order for §1123-to be

t applicable.

Petitioners also persist in contending that the City.has

dismissed them merely for exercising . their constitutional

right tg remain silent. In support of this contgntion they

cite two recent decisions of this Court, Garrity/v. New Jer-

sey, 385 U. 8, 493° (1967) and Spevack v. xicéi, 385 U.;S.

_ 511 (1967). As to Garrity, the Circuit. Court’ below noted

that ‘‘that holding has no application to the present case |

4

.

ea

15 ae

where the employees did not testify, but relied upon their

claims of privilege’’ (R. 87a). Garrity held only that where

testimony was given by public employees under circum-

stances where failure to testify could . lead to dismissal,

their testimony could not be used against them insubse-

quent criminal -prosecutions. The Garrity case would ap-

pear, therefore, to remove any basis for a refusal by a gov-.

ernment employee to answer questions concerning his

official duties when questioned. by duly authorized goyern-

ment -officials charged with the duty of investigating the

employee’s conduct. Garrity establishes that the Miployeo’s |

answers may not be used against him in a criminal pro- |

ceeding. Obviously this ruling would also, extend to any

evidence discovered as a result of his —

In view of the unavailability of the answers for use in

any criminal proceeding, the Fifth Amendment should not

be extended to bar questioning of government employees to

obtain information concerning crime or to determine

whether they have been guilty of misconduct in performing

their official duties. It is true that the immunity obtained

as a result of giving answers when so questiened is not

given with the formality of a specific grant of immunity

and that the scope of the immunity is not so broad as that

given under'such a grant. The immunity, however, would

appear to be broad ‘enough to satisfy Fifth Amendment

requirements since it extends to the answers and the frujts

of the answers. In Murphy v. Waterfront Commission of

New York, 378 US. 52,79 (1964), this Court held that, a

similar immunity pee Aaeiee to federal prosecution, lim-

ited to compelled testimony and its fruits, satisfied the re-

quirements of the Fifth Amendment.

?

eee 7 F "fA 6

4

4

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i

i

;

i

F

whe ‘ sees! TW

16

As to the effect of the decision in Spevack, which involved

the disbarment of an attorney, this Court noted that it did

' not reach the question of the discharge of a public employee

who refused to testify in disciplinary proceedings (fn. 3, 385

, U.S. at p. 516): .

**3. Whether a policeman, who invoked the privi--

lege when his conduct as a police officer is questioned.

in disciplinary proceedings, may be discharged for _

refusing to testify is a question we do not reach.”’

The distinction between Spevack and the present case

; was also made clear by Mr. Justice Fortas in his concurring

- opinion. He stated (385 U. S. at p. 519): | °

“T would distinguish between a lawyer’s right to -

remain silent and that of a public employee who is

asked questions specifically, directly and narrowly re-

lating to the performance of his official duties as dis-

tinguished from his beliefs‘on other matters that are.

not within the scope of the specific duties which he

undertook faithfully.to perform as part of his em-

ployment by the State. This Court has never held, ~~

for example, that a policeman may not be discharged

for refusal in disciplinary proceedings to — as

to his conduct as a police officer.’ ”

“’

°

Despite the obvious legitimate interest of the City j in the

fitness of its employees to perform their duties -and the’.

need: for employees to cooperate in an official inquiry on

this question, petitioners claim the’ right (1) to refuse to

"answer questions concerning their employment put to them

- by properly authorized ‘City officials or to withhold infor-

mation by refusing to sign a waiver of. immunity when.

called to testify before a grand jury, (2) to refuse to offer .

any explanation or justification for such refusal at a hear-’

» , 4

@ ; \

17

ot : ;

ing especially called for that purpose, and (3) to retain

their City employment. This is not the law.

In its opinion below the Court of Aggsile stated (R. 87a) :

‘It was surely proper for a city official charged

_ with the duty to do so to investigate charges of mis-

feasance in the operation of the Sanitation Depart-

ment and in connection with such an investigation to

question employees about their participation in ac- .

. tivity which reflected the possibility of bribery and

embezzlement. Can there be any reasonable doubt

‘that an employee, especially one who lfws been warned

of the consequences of his refusal to answer, can be

(and, indeed; should be) discharged for, such re-

fusal?”’

A City employee has <a right to refuse to answer wie

questioned about his employment by appropriate City offi- :

gials but he does: not have a right to fail to justify or

explain his refusal at.a hearing called to afford him that’

| opportunity, and at the same time retain his job.

POINT Il

The gre of, «Wiretap tn: this case by the Comuile-

sioner of Investigation did not violate petitioners’ con-

stitutional _ under the Fourth and Fourteenth

Amendments. __ ,

A. Berger and Katz Should Not Be Given Retroactive

Application. |

Petitioners’ claim that the whesiee violated the Fourth |

Amendment’s proscription against unreasonable searches

and seizures rests primarily on the decigions of this Court

in Berger v. New York, 388 U.S. 41 (decided June 12, 1967)

ae ees 7 b . ‘s

ti BG ERI GAN Sok

een ph Bhionihin Oso Kr he

18

| and Kate v. United States, 389 U. S. 347 (decided Dernier

18, 1967). Berger applied Fourth Amendment standards to

trespassory eavesdrops and Katz specifically held that non--

trespassory eavesdrops, €.9., wiretaps, were also subject to

constitutional scrutiny.

| Assuming, arguerdo, that: under the decisions in those

cases the tap carried out by the Commissioner of Investi-

gation did violate petitioners’ rights under the Fourth and

Fourteenth Amendments, the doctrines established in

Berger and Katz should not be applied retroactively to this:

case. -‘Wnder the tests established by this Court.in Link- -

letter v. Walker, 381 U.S. 618 (1965), Tehan v. Shott, 382

U.S. 406 (1966), Johnson v. New Jersey,’ 384 U.S. 719

, (1966), and Stovall v. Denno, 388 U.S. 293 (1967), the,con-

stitutional standards for eavesdrop warrants, set forth in

3 Berger and Katz, should be applied prospectively to trials

’ or proceedings commenced after the date of these decisions.

As the Court noted in Linkletter, supra, ‘‘The Court

may in the interest of justice make the rule prospective

* * * where the exigencies of the situation require such an

" application’’ 381 U.S. at 628..

In determining whether new constitutional rules should

be applied retroactively, this Court has adhered to ” fol-

Jowing standard :

“The criteria guiding sesebation of. the question -

implicate (a) the purpose to be served by the new

standards, (b) the extent of the reliance by law en-

. forcement authorities on the old standards, and (c)

the effect on the administration of justice of a ae

active application ofthe new standards.’’ Stovall v.

-Denno, 388 U.S. at p. 297.

2

——

19 -

.€

~ See‘also Linkletter v. Walker, 381 U:8. at p. 636; Johnson

v. ‘New Jersey, 384 US. at p. 127; ‘Tohqnt. at, 3820S. at

pp. 410, 413.

Thus, new judicial constructions of constitutional provi.

sions have been applied retroactively where the purpose

served by the new rule is preservation of the ‘‘integrity of .

fhe truth-determining process at trial * * * *?. Stovall v.

‘Denno, ; 388 U.S. at 298. Examples of such rules are the

right: s trial counsel, Gideon. v. Wainwright, 372 U.S: 335

(1963), the right of ai indigent to a fair appeal, Griffin v.

Illinois, 351 U.S. 12 (1956), and the right to a procedure

which leads ‘to a fair appraisal of the voluntariness of a

_ confession, Jackson v. Denno, 378 U.S. 368 (1964). In each

of these cases the new rule was applied retroactively. ~ .

_As the Court reasoned in J ohnson: . i

‘‘In Linkletter we declined to apply. niall,

the rule laid down in Mapp v. Ohio, 367, U.S. 643 .

(1961); by which evidence obtained through an un-

Denssnehie. search and seizure was. excluded from

state criminal proceedings. In so holding, we relied

in part on the fact that, the rule affected evidence

‘the reliability and relevancy of which is not ques-

tions.’ $61 U.S, at 689: * ° * 3) }

Jn Gideon v. Wainwright, 372 U.S. 335 (1963),

which concerned the right of an indigent to. the ad-

vice of counsel at trial, we reviewed a denial of ha- § *

-beas corpus * * * In [this] instance we concluded

that retroactive application was justified because the

rule affected ‘the very integrity. of the fact finding

process’ and averted ‘the clear danger of convicting

the innocent.’ Linkletter v. Walker, 381 U.S., at 639;

Tehan v. Shott, 382 U.S., at 416.” 384 US, at pp.

727-28.

20

Applying this reasoning to Johnson, this Court refused to

apply retroactively its decisions in Escobedo v. Illinois, 378

U. S. 479 (1964) and Miranda v. Arizona, 384 U.S. 436

' (1966), both of which broadened persons’ rights under the

| Fifth Amendment. Similarly, in Stovall v. Denno, supra, |.

the Court applied. its decision in. Umited States v. Wade,

+ 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 363

* (1967), prospectively in cases involving the right to coun--

sel at pre-trial confrontations.

In the case at bar there i is no compelling reason to apply

retroactively the new standards enunciated in Berger and

| Katz. The purpose of these new rules is to protect the

privacy of certain conversations against future invasions |

by law enforcement officers through searches that do not

‘meet Fourth Amendment standards. Here, as in the ap-

plications of Mapp, Escobedo, Mgranda, Griffin, Wade, and

Gilbert, any past infringement of petitioners’. rights, re-

sulting from actions based on constitutionally inadequate

state procedures, can no longer be.rectified. Even more than

-in Mapp, Escobedo, Miranda, Griffin, Wade, and Gilbert, the

new rules in Berger and Katz do not affect the integrity of _

the fact-finding process. There is no allegation that the

wiretap. evidence, even if it had been used, was unreliable.

4 The new'rules in Berger and K atz were designed to control. .

| the obtaining and use of admittedly reliable evidence. The

extension of Fourth Amendment protection to eavesdrops

was dictated by this Court’s conclusian that its prior de-

cisions did not/provide sufficient safeguards: against uncon-

stitutional invasions of privacy. Such a purpose is not fur-

thered by the recente application of the new rule.

Moreover, in this case there is no allegation that evidence

. - obtained from the allegedly unconstitutional wiretap was

———

.

; used against petitioners. in any subsequent proceeding: -

Rather, the argument is made that the wiretap triggered a

series of events leading to. an impairment of petitioners’

privilege against self’: ‘incrimination. Yet, in Escobedo and

Miranda; involving more serious aspects of the Fifth

Amendment’s privilege - against self-incrimination, this

Court held that those decisions applied only to trials: be-

‘ginning after the date of each decision. Certainly, the

- claims of petitioners, with regard to the new rules. in

Berger and Katz, do not merit greater consideration than

was accorded Johnson. with: regard to the application of

Escobedo and Miranda.

The other two tests established by this Court for deter-

mining whether new rules are to be applied retroactively.

are equally co1apelling in arguing for prospective applica- »

tion of Berger and Katz. There is little doubt that the Com-

missioner of Investigation has relied on the past decisions

of this Court concerning wiretapping and eh a

.and there would be a substantial adverse effect'on the ad-

ministration of justice if Berger and Katz we e applied

retroactively, thereby invalidating thousands o prosecu-

tions Secured through the use of eavesdrops and wiretaps.

At the time of the tap iby the Commissioner of Investiga-

tion, his conduct was not proscribed under the Fourth

Amendment standards subsequently established in Berger §

and made specifically applicable to non-trespassory eaves-

drop orders in Katz. The court order here, secured in 1966,

- was obtained pursuant to a statute that had been held not

to violate the Constitution. Harlem Check Cashing Corp. v.

Bell, 296 N.Y. 15 (1946) ; People. v. Stemmer, 298 N.Y. 728

(1948), aff’d. by an. equally divided court, 336 U.S. 963,

petition for rehearing denied, 337 U.S. 921. In light of the

ss

?

-

settled authority prior to Mere the United States Court,

of Appeals for the Second Circuit held, in 1961, that a claim.

under 28 U.S.C. §2281 that Criminal Code §813-a ‘‘contra-

venes the Fourth or Fifth Antendment to the Federal Con-

stitution was insubstantial * * * ’. Williams v, Ball, 294 F.

" 2d°94 ros Cir. 1961) cert. den., 368 U.S. 990.

Respondents’ reliance on pre-Berger standards influenced

not .only their actions but their. presentation of their case

’ to the district court. Iftrespondents had known, in Decem-

ber, 1966, what the Court made clear in Berger and Katz,

" ¥espondents might have attempted to demonstrate that the

investigation was based on independent evidence free from ~

the taint of the wiretap. _Also, respondents might have

attempted to show. that the wiretap oer in this case met

Ge standard established i in Berger an nao.

’ Finally, the. administration of justice wield be seriously _

impaired by casting the shadow of illegality over proceed-

ings undertaken in good faith by law enforcement officials.

_ As the New York Court of Appeals noted in People v.

Kaiser, 21 N.Y. 2d 86, at p. 98:

“Thousands of sabiaiiiiaiisie orders have been

issued in reliance upon the statute [813-a] and the

decisions of this court which the Supreme Court had

seen fit not to disturb. (See People v. Dinan, 11 NY

2d 350, cert. den. 371 U.S. 877; People v..Pugach, 16

NY 2d 504, app. dsmd. 383 U.S. 575; People v. Cohen,

18 NY 2d-650; cert. den. 385 U. S. 976, ie den.

385 U.S. 1032.) ”’ 3

Until Berger, law enforcement officials could not ascertain

the standards which that decision established for eavesdrop |

warrants, and until Olmstead and Goldman were’ overruled

in Katz, law enforcement officials in good faith believed that

H

4

23

-

non-trespassory eavesdrops, ¢.g., wiretaps, were beyond the

reach of the Fourth Amendment. To apply these new rules

to proceedings and trials which commenced prior to the.

decisions in Berger and Kate would threaten the finality of §

large numbers of convictions based on reliable evidence —

frequently secured, as in the case of New York, under a

- statute- assumed to be constitutional under prior decisions

of this Court.: (See statutes cited i in Berger, 388 U.S. at

pp. 47-48, fns. 4, 5), :

It should be noted that Linkletter and Tehan held that

Mapp ahd Griffin applied to cases still on direct appeal at

the time they (Mapp and Griffin) were decided, whereas §

Johnson and Stovall. held that the doctrines established i in

' Escobedo, Miranda, Wade; and Gilbert applied only to trjals

figinning after the dates they (Escobedo, Miranda, Wade,

and Gilbert) were decided. However, this court in Johnson §

made clear the reason for those exceptions to the general §

rule of prospective application :

‘‘Our holdings in Linkletter and Téhon were neces-

sarily limited to convictions which had become final

by the fime Mapp and Griffin were rendered. Deci-

sions prior to Linkletter and Tehan had already

established without discussion that Mapp and Griffin

applied to cases still.on direct appeal at the time

ae were announced. See 381 U.S., at 622 and n.

4; 382 U:S., at 409, n. 3. On the other hiffid, apart

from the application of the holdings in Escobedo and

Miranda to the parties before the Court in those

cases, the possibility of applying the decisions énly

prospectively is yet an open issue.’’ 384 U.S. at p. 732.

Petitioners here are in the same posture as was John-

son. This is the first case to reach this Court which involves

the application of the Berger and Kate cases to a state |

: proceeding, completed prior to those decisions, in which the

Pee ee a ere) Nt

sill ‘had obtained a wiretap order which was orn

at the time it was issued.

Nor can it ie argued that Katz applied the Serves stand-

ards to a case on direct appeal. Berger and Katz do not

stand for the same proposition. Prior to Berger non-tres- ©

‘passory eavesdropping was still excluded from Fourth

Amendment protection because of this Court’s decisions

in Olmstead and Goldman. er did not alter this

doctrine. —

As the New York Court of Appeals noted in People v.

Kaiser, 21 N.Y. 2d 86, 100-01 (1967):

‘‘While Mr. Justice Clark [in Berger] indicates

that that portion of Olmstead which held that speech

was not capable of seizure has been ‘negated’ by sub-

sequent cases, [Goldman v. U.S.,.316 U.S. 129; Silver-

man v. U.S.,- 365 U.S. 505; Clinton v. Virginia, 377

U.S. 158] nowkere does his opinion state that the

basis of the decision in Olmstead that wiretapping

accomplish without an intrusion into the caller’s

premises infringes no constitutional right—has been

negated by any subsequent decision. sting

“The Court’s apparent intention to stick to a dis-

tinction which can survive only as long as Olmstead

remains viable, is evidenced in the jesse paragraph

of the Berger opinion.’’

In Berger, the Court confirmed this interpretation in the

closing sentence of its opinion:

‘‘Our concern with the statute here is whether its

language permits a trespassory invasion of the home,

by general warrant, contrary to the command of the

Fourth Amendment. As it, is written, we believe it

does.’’ 388 U.S. at p. 64.

z

* 95

In this posture, Katz represented the first explicit state-.

ment that the Constitution also protected non-trespasspry

eavesdrops. It was in Katz, not Berger, or earlier cases,

that the Court said: |

‘*We conclude that the underpinnings of Olmstead

and Goldman have been so eroded by our subsequent

decisions that the ‘trespass’ doctrine there enunciated

can no longer be regarded as — ’* 389 U.S.

at p. 353.

Thus, there is no reason to apply a test of penipniien

application different from that enunciated in Johnson and

Stovall. The new rules should apply only to proceedings

' commenced after the decisions in Berger and Katz.

B. The Tap. Did-Not Taint the Subsequent Proceeding.

Petitioners contend that they were invalidly, dismissed be-

Ase the dismissal was based on the exercise by petitioners

of their privilege against self-incrimination. These dis-

missals are connected to the wiretap by a tenuous series

of links. It is alleged that an unconstitutional wiretap

formed the basis for the investigation, which led to the

inquiry before the Commissioner of Investigation, which

led to the invocation of the privilege, which led to the hear-~*

ing, which led to the dismissals.

Under the ‘circumstances of this case, even if the Court

applies .retroactively the rules established in Berger and

Katz, and even if the tap failed to meet the constitutional

standards established by those cases, the subsequent dis-

ciplinary proceedings should not be invalidated. Instead,

the Court should apply the common sense rule of Nardone v.

United States, 308 U.S. 338, which applied the ‘‘fruit of the

Silman tree’’ doctrine to wiretaps. As Mr. Justice

4 Frankfurter said: .

«Sophisticated argument may prove a causal con-

nection between information obtained through illicit

- wiretapping and. the Government’s proof. As a

: matter of good'sense, however, such a connection may

i have become so attenuated as to dissipate the taint.”’

(p. 341).

: In this case the central question is whether the City may

: require an employee to answer questions regarding his

employment and whether it may dismiss that erffployee for

. failing to answer such questions. If the City has this right,

_ ‘the source of the questions, assuming the source*to be an

unconstitutional wiretap, should not taint the proceeding.

It-should be remembered that the evidence obtained by the

tap was not introduced. Rather, it was the failure to re-

spond to questions allegedly ‘derived from the tap which led

to the dismissal. . 7 7

If the City used illegal means in gathering evidence, such

evidence or its fruits could never be used against the per-

son from whom it was seized. Moreover, if an employee was

coerced to incriminate himself because he was confronted

with illegally obtained evidence, such confession or testi-

mony could not be used against him. United States v. Tane,

329 F. 2d 848 (2d Cir. aaeey 5 People v. Rodriguez, 11 N.Y.

2d 279 (1962).

In the instant case, neither the wiretap nor its fruits

were used and the tap did not induce a confession. Instead,

petitioners chose to assert their Fifth Amendment privilege

either before the Commissioner of Investigation or before

the Grand Jury. The result of the tap was a refusal to

27

answer. In the absence of the use of the evidence, these pro--

ceedings do not present a judicially cognizable violation

of Fourth Amendment rights.

Yet, petitioners would nal this Court hold that the wire-

tap precludes the City from questioning its employeés about

their jobs, ‘or imposing disciplinary action for insubordina-

tion, or invoking other sanctions, even though no evidence

. Such a holding would distort beyond reason the

on sense rule of Nardone.

Nor can it be contended that the tap was used to. identify

the Petitioners, as in Tane, supra. It was: reasonable to.

expect that all the employees at the 91st Street Transfer

‘Station would be called before the Commissioner of Investi-

gation. By the nature of the. operation of that facility all

of the employees would have known of the improper acts

‘of any of.them.. As the record indicates (R. 71a), the in-

vestigation and the subsequent tap were undertaken as a

result of. information received from a reliable informant.

The tap was neither the basis for the investigation, nor the

means of identifying the Petitioners as suspects; nor did

evidence obtained from the tap provide the basis for their

dismissals. Under these circumstances, the taint of the

illegal tap, if indeed the tap was illegal, had been dissi-

pated. See United States v. McGavic, 337 F. 2d 317 (6th Cir:

1964); Rogers v. United States; 330 F. 2d 535 (5th Cir.

1964) ; Hollingsworth v. United States, 321 F. . 342 (10th

Cir. 1963).

e illegal ‘‘search’’ was introduced against peti- §

eT ee

oer et OMe

28

C.. Petitionera, Fail to Establish a Violation of Fourth

“Amendment Rights Under the Standards Estab-

lished in Katz and Berger.

As a result of Berger and K atz, iti is clear that eavesdrop-

ping by law enforcement officials could’ constitute an unrea-

sonable search and seizure, within the meaning of the Fourth

Amendment. In Katz, the Court specifically held that a non-

trespassory eavesdrop must meet the specific standards of

the Fourth Amendment, “including, as a. general rule, the

requirements of a.warrant.

It was not the ‘holding of this Court, however, either in

Berger or Katz, that search warrants in full compliance

with the Fourth Amendment must be used in all cases where

_ conversations are ‘‘seized.’’ Nor is it the contention of re-

spondents that the City of New York is free to tap all its

phones at all times, without warrants, merely because these

phones are leased by the City. As the Court noted in Katz:

”

‘‘The Fourth Amendment cannot be tyaneinted into

a general constitutional ‘right ta privacy.’ That

Amendment protests individual privacy against cer-

tain kinds of governmental intrusion, but its protec-

tions go further, and often have nothing to do with

privacy at all. * * *

‘*What a person knowingly exposes to the public,

even in his own home or office, is not a ‘subject of -

Fourth Amendment protection. See Lewis v. United

States, 385 U.S. 206, 210; United States v. Lee, 274

U.S. 559, 563. But what he seeks to preserve as pri-

vate, even in an area accessible to the public, may be

constitutionally protected. See Rios v. United States,

364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.”’

389 U.S. at pp. 350-52.

eee .

: >

4 ‘ ”

Thus, under this test the question to be answered is

whether petitioners could reasonably” have expected that

calls made on the phone at the 91st Street Marine Transfer

Station would be free from interception by their employer,

during’ an authorized investigation into irregularities re-

garding the performance of their duties.

Certain facts readily distinguish this case from Katz.

Although these facts do not appear in the record, they are

mentioned here for purposes of indicating to the Court the |

factors which the trial court should consider ‘in determining

whether the obtaining of wiretap evidence in this case was

a violation of petitioners’ Fourth Amendment rights, if

the Court concludes that this issue should be reached in’

this case.

For example, the phone tapped by the Commissioner of |

Investigation was a City phone, used exclusively for the

transaction of official business. It was the’ only telephone

(with one extension) at the Transfer Station. It was not. »

assigned to any individedl employee.. Department regula-

tions prohibited any unauthorized use of the phones at that

or any other Sanitation facility. The phone was not open.

to the publie. |

In Katz, on the other hand, the telephone which was

“bugged”? was a public phone which a person could expect

to use in privacy when he paid his toll. In Katz there was

only one suspect involved, who used the phone at regular

times each day. As the Court noted, these were circum-

stances in which the warrant defining the limits of the search

‘was most appropriate. In the case at bar, nearly all of the .

petitioners used the phone (R. 41a-62a) throughout working

hours at the facility, which is open 24 hours a day.

OE Se ted es Sat ia

30

Under ‘these circumstances a trial court may find that a

court order is neither practicable nor necessary or that the

petitioners could not reasonably have expected privacy dur-

_ing the unauthorized use of the phone, ‘particularly from

Antrusion by a City official who had a duty to discover and

expose the niisuse of City property.

.

a Me Mie I 4 2 Me

Under circumstances analogous to the instant case, the

Court of Appeals for the Second Circuit, in United States v.

Collins, 349 F. 2d 863, cert. den., 383 U.S. 960 (1965), declined

to find a invasion of privacy. It sustained the conviction of

a federal employee for mail theft ‘where the primary evi-

dence was obtained by a search, without a warrant, of de-

™ fendant’s office desk and jacket. In holding this to be a

reasonable search and seizure, ‘the Court said (349 F. 2d

at pp. 867-868):

F awe have no doubt that the search of ‘defendant’s

; - work area,. ineluding the surface and interior of his

desk, conducted by. Customs agent McDonnell and

. Post Office Inspector Forster was a constitutional

exercise of the power of the Government as defen-

dant’s employer, to supervise and investigate the.

performance of his duties as a customs employee.

Defendant was handling valuable mail for which the

_ Government was responsible. The agents were not

_ investigating a crime unconnected with the perform-

ance of defendant’s duties as a Customs employee.’’

This Court has never held that all searches and seizures

by government officials, made without a warrant, violate .

the Fourth Amendment. Experience. has evolved rules con-

cerning, for example, searches incident to a lawful arrest,

Agnello v. United States, 269 U.S. 20 (1925), Ker v. Cali-

fornia, 374 U.S. 23 (1962); searches of moving vehicles,

31.

Carroll v. United States, 267 U.S. 132 (1925), Brinegar v..

United States, 338 U.S. 160 (1948) ; and, most. recently, ad-

ministrative inspectional searches, Camara v. Municipal

Court, 387 U.S. 523 (1967), See v. Seattle, 387 U.S. 541

(1967). In Berger and Katz this Court charted new areas

of. constitutional protections when it specifically applied

Fourth Amendment protections to conversations, including

those garnered by. non-trespassory eavesdrops. As in the

case of the seizure of objects, or in the development of pro- .

cedures for administrative inspectional warrants, experi-

ence in this evolving area of law militates against the. adop-

tion of a rule which would apply strict Fourth Amendment

standards to all eavesdrops by the government of its em-

ployees’ conversations. ~

This Court should recdgnize the legitimate need. of gov-

ernment to ascertain whether its equipment, including its

. phones, is being used in an unauthorized manner for non- .

governmental purposes. Respondents do not suggest that

government employees do not have a right to privacy with .

regard to their conversations, even on government phones.

. Respondents do contend, however, that the facts of this case,

if fully developed in an adequate record, would establish

that the tap of. this phone, under the circumstances sur-

rounding the tap, was not an unreasonable search and

seizure. If this Court finds it necessary to reach this ‘con-

stitutional question in light of the compelling arguments

already made concerning the retroactive application of .

Berger and Katz and the tenuous link bétween the tap and

these proceedings, the Court should remand in order for

the trial court to-ascertain the facts upon which a sound con-

stitutional determination could be made. |

Pome Ie Pe eee

i wl Sa ic aia Na andl RO, SSL Ge Naa

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ri

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‘

tal teen

Se er es ee eee One

(tion ite gi

32

‘D. The: adie Violation of Section 605 of Federal

. / Act Does Not Invalidate the Dis-

missal of Petitioners.

Petitioners contend that the wiretap used by the Commis-

” sioner of Investigation violated their rights under §605 of |

‘the Federal Communications Act and thus, all subsequent

proceedings are invalid.

- Even if there’ had been a + ition of $605, for the rea-

sons stated in subdivision (B), above, there was no,causal

connection between the interception of the conversations

involving petitioners and their subsequent dismissals.

Neither the tapped conversations nor any evidence obtained

through them was ever used against petitioners in their

disciplinary hearing or in any subsequent proceeding.

.Their dismissals were.based on their refusal to answer

questions relating to their duties, or on their withholding

of information by refusing to waive immunity from prose-

cution when called before the grand jury.

If the Court, however, were to determine that the tap did

affect subsequent events, the use of such evidence, or its

fruits, is permitted in state proceedings under the doctrine

of Schwartz v. Texas, 344 U.S. 399 (1952). In light of that

' decision, this Court should reject the argument that Mapr

v. Ohio, 367 U.S. 643 (1961), which required the exclusion —

of evidence obtained in violation of the Fourth Amendment

in state as well as federal courts, overruled Schwartz. In’

Pugach v. Dollinger, 365 U.S. 458 (1961), decided only a

few months prior to Mapp, this Court reaffirmed the

‘Schwartz doctrine. While an unconstitutional wiretap would -

be inadmissible in state trials under Mapp, a finding of a

violation of 4605 algne does not sustain petitioners’ claims.

‘88:

CONCLUSION

The judgment below should be affirmed.

April 12, 1968.

Respectfully submitted, ; See

J: Lee Ran, —

Corporation Counsel of the

‘City of New York,

Attorney for Respondents.

Norman Rep.iicu, Rat ee ee

Joun J. Lorin, | =

Rorert C. Drnerstern,

of Counsel. —

34

re

4 ar ‘ a ey @

4

- APPENDIX

_ New York City Charter §1123:

= ‘Failure to testify.—If any councilman or other |

_. Officer or employee of the city shall, after lawful

notice or process, wilfully refuse or fail to appear

: - before any court or judge, any legislative committee,

or any Officer, board or body authorized to conduct

any hearing or inquiry, or having appeared shall

refuse to testify or to answer any question regard-

ing the property, government or affairs of the city

or of.any county included within its territorial limits,

or regarding the nomination, election, appointment

i or official conduct of any officer or employee of the ©

- gity or of any such county, on the ground that his

answer would tend to incriminate him, or shall _re-

’ fuse to waive immunity from prosecution on account

of any such matter. in relation to which he may be

asked to testify upon any such hearing or inquiry,

his term or tenure of office or employment shall ter-

tminate and such office or employment shall be vacant,

and he shall not be eligible to election or appoint-

ment to any office or employment under the city or

any agency. (Derived from former §903.)’’

+ New York State Code of Criminal Procedure §813-a:

‘‘Ex parte order for eavesdropping. An ex parte

' order for eavesdropping as defined in subdivision

one and two of section seven hundred thirty-eight

of the penal law mey be issued by any justice: of

the supreme court or judge of a county court or of

the court of general sessions of the county of New

York upon oath or affirmation of a district attorney,

or of the attorney-general or of an officer abovethe _

rank of sergeant of any police department of the .

state or’ of any political subdivision thereof, that

35° | ‘

= Appeniia 7

there is soneonable ground to believe that evidence

of crime may be thus obtained,- and particularly de-

scribing the person or*persons whose communica-

tions, conversations or discussions are to be over-

heard or recorded and the purpose thereof, and, in ~

the case-of a telegraphic or telephonic communica-.-

tion, identifying the particular telephone number or |

- telegraph line involved. In connection with the issu-

ance of such’an order the justice or judge may ex-

amine on oath the applicant and any other-witness

he may produce and shall satisfy himself of. the Ox:

istence of reasonable grounds for the granting of.

such application. Any such order shall be effective

for the time specified therein but not for a period

of more than two-months unless extended or re-

newed by the justice or judge who signed and is-

sued the original order upon satisfying himself that

such extention or renewal is in the public interest.

Any such. order together with the papers upon which

‘the application was based, shall be delivered to and

retained by the applicant as authority for the eaves-

_. dropping authorized therein. A true copy of such

_order shall at all times be retained in his possession _

by the judge or justice issuing the same, and, in the

‘event of the denial of an application for such an

order, a true copy of the papers upon which the |

application was based shall in like manner be re-

tained by the judge or justice denying the -same.’?

‘Communications Act of 1934, 47 U. S. C. §501, £605:

“$501. General penalty:

_ Any person who willfully and knowingly does or

causes or suffers to be done any act, matter, or

thing, in this chapter prohibited or declared to be’

unlawful, or who willfully and knowingly omits. or

fails to do any act, matter, or thing in this chapter -

required to be done, or willfully and knowingly

causes or suffers such omission or failure, shall,

upon conviction thereof, be punished for ’such of-

fense, for which no penalty (other than a forfeit-

ure) is provided in this chapter, by a fine of not

more than $10,000 or by imprisonment for a term

not exceeding one year, or both; except that any _

person, having been once convicted of an offense

punishable under this section, who is subsequently

convicted of violating any provision of this chapter

punishable under this section, shall be punished by a

fine of not more than $10,000 or by imprisonment

for a term not exceeding two years, or both. June

19, 1934, ¢. 652, Title V, §501, 48 Stat. 1100;*Mar.

23, i c. 104,.68 Stat. 30.

“8605. Unauthorized publication or use of com-

munications

‘No person receiving or assisting in receiving, or

transmitting, or assisting in transmitting, any inter-

state or foreign communication by wire or radio

_- shall divulge or publish the existence, contents,

substance, purport, effect, or meaning thereof, ex- —

cept through authorized channels -of transmission

or reception, to any person other than the addres-

see, his agent, or attorney, or to a person employed ~

or authorized to forward such communication to its

destination, or to proper accounting or distributing

officers of the various communicating centers over

which the communication may be passed, or to the

master of a ship under whom he is serving, or in

response to a subpoena issued by a: court of com-

* petent jurisdiction, or on demand of other lawful

authority; and no person not ‘being authorized by

. 37

Appendia

‘the sender shall intercept any communication and

divulge or publish the existence, conténts, sub-

stance, purport, effect, or meaning of such inter-

cepted communication to any person; and no per-

son not being entitled thereto shall receive or as-

sist in receiving any interstate or foreign communi-

cation by wire or radio and use the same or any

information therein contained for his own benefit or

for the benefit of another not entitled thereto; and

no person .having received such intercepted com- ©

munication or having become acquainted with the

contents, substance, purport, effect, or meaning of

the same or any part thereof, knowing that such in-

formation was so obtained, shall divulge or publish

the existence, contents, substance, purport, effect, or

meaning of the same or any part thereof, or use the

same or any information therein contained for his

own benefit or for the benefit of another not en-—

titled thereto: Provided, That this section shall not

apply to the receiving, divulging, publishing, or util-

izing the contents of any radio communication

broadcast, or transmitted by amateurs or others for

the use of the general public, or relating to ships in

distress. roars 19, 1934, c. 2, Title VI, §605, 48

Stat. 1103.” | °

New York State Civil Service Law 95 :

‘‘Removal and other disciplinary action

_ 1, Removal'or disciplinary action. A person de-

scribed in paragraph (a) or paragraph (b), or para-

_ graph (c) of this subdivision shall not be removed

or otherwise subjected to any disciplinary penalty

provided in this section except for incompetency or

miscondyct shown after a hearing upon stated

charges pursuant to this section.

se -*® ©

Appendia

2.. Procedure. A person against whom removal

or other disciplinary action is proposed shall have

written notice thereof and of the reasons therefor,

shall be furnished a copy of the charges preferred

against him and shall be allowed at least eight days

for answering the same in writing. The hearing

upon such charges shall be held by the officer or

* body having the power to remove the person against

whom such charges are preferred, or by a deputy

or other person designated by such officer or body

in writing for that purpose. In case a deputy or

other person is so designated, he shall, for the pur-

pose of such hearing, be vested with all the pow- .

ers of- such officer or body and shall make a rec-

ord of such hearing which. shall, with his recom-

mendations, be referred to such office or body for

review and decision. The person or persons holding™.

such hearing shall, upon the request of the person

against whom charges are preferred, permit him to

be represented by counsel, and shall allow him to

summon witnesses in his behalf. The burden of prov-

ing incompetency or misconduct shall be upon the -

, person alleging the same. Compliance with technical

rules of evidence shall not be required.

3. Suspension pending determination of charges;

penalties. Pending the hearing and determination of |

charges of. incompetency or misconduct, the officer

or employee against whom such charges have been

preferred may be suspended without pay for a period

riod not exceeding thirty days.* * * If he is acquitted,

he shall be restgred to his,positiem with full pay for

the period of suspension less the amount of compen-

sation which he may have earned in any other em-

ployment or occupation and any unemployment in-

surance benefits he may have received during such

a

39 -

Appendiz.

period. If such officer or employee is found guilty,

a copy of the charges, his written answer thereto, a

transcript of the hearing, and the determination

shall be filed in the office of the department or agency

in which he has been employed, and a copy thereof

shall be filed with the civil service commission hav-

ing jurisdiction over such position. A copy of the

transcript of the hearing shall, upon request of the

¢ Officer or employee affected, be furnished to him with.

’ out charge. 2

ed

2

#

ue