Berger v. New York
Decided on June 12, 1967; 388 US 41

NY statue allowing electronic eavesdropping is reviewed under the 4th Amendment


A. Issues Discussed: Criminal Justice (4th Amendment)

B. Legal Question Presented:

Is New York's electronic eavesdrop statute constitutional?


A. Background:
Police obtained an order from the New York State Supreme Court to install a recording device in the office of petitioner Ralph Berger, pursuant to Section 813-a of the state's Code of Criminal Procedure.  The statute permits the installation of a recording device, for electronic eavesdropping, so long as the police have reasonable grounds to believe that evidence of a crime may be obtained.  It further allows electronic eavesdropping for up to two months, unless extended, and it does not require notice to the person being surveyed.  After some evidence was uncovered from the initial surveillance, an extension for another two month period was issued.

Based on evidence obtained by the electronic eavesdropping, petitioner was convicted of conspiracy to bribe the Chairman of the New York State Liquor Authority.  During his trial, portions of the recordings were played to the jury, over the objection of petitioner.  Petitioner challenged the constitutionality of the statute, but the New York courts upheld its constitutionality.  Petitioner sought review by the US Supreme Court and the high court granted certiorari.
B. Counsel of Record:
Opposing Side
Joseph E. Brill argued the cause for petitioner. With him on the brief was Abraham Glasser. H. Richard Uviller argued the cause for respondent. With him on the brief were Frank S. Hogan and Alan F. Scribner.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
John J. McAvoy filed a brief for the New York Civil Liberties Union as amicus curiae urging reversal.

Other briefs of amicus curiae urging reversal were filed by Jack Grant Day and Gerald Zuckerman for the National Association of Defense Lawyers in Criminal Cases; and by Raymond W. Bergan for the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.
Briefs of amici curiae, urging affirmance, were filed by Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Amy Juviler, Assistant Attorney General for the Attorney General of the State of New York, and by G. Robert Blakey for Elliot L. Richardson, Attorney General of Massachusetts, Robert Y. Thornton, Attorney General of Oregon, and the National District Attorneys' Association.


"We have concluded that the language of New York's statute is too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and is, therefore, violative of the Fourth and Fourteenth Amendments. 

While New York's statute satisfies the Fourth Amendment's requirement that a neutral and detached authority be interposed between the police and the public, the broad sweep of the statute is immediately observable...

The Fourth Amendment commands that a warrant issue not only upon probable cause supported by oath or affirmation, but also 'particularly describing the place to be searched, and the persons or things to be seized.' New York's statute lacks this particularization. It merely says that a warrant may issue on reasonable ground to believe that evidence of crime may be obtained by the eavesdrop. It lays down no requirement for particularity in the warrant as to what specific crime has been or is being committed, nor 'the place to be searched,' or 'the persons or things to be seized' as specifically required by the Fourth Amendment...

First, as we have mentioned, eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the 'property' sought, the conversations, be particularly described... As with general warrants this leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause... This we believe insufficient without a showing of present probable cause for the continuance of the eavesdrop. Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. This is left entirely in the discretion of the officer. Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits uncontested entry without any showing of exigent circumstances... In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.

It is said that neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements. If that be true then the 'fruits' of eavesdropping devices are barred under the Amendment. On the other hand this Court has in the past, under specific conditions and circumstances, sustained the use of eavesdropping devices... The Fourth Amendment does not make the 'precincts of the home or the office's sanctuaries where the law can never reach,' but it does prescribe a constitutional standard that must be met before official invasion is permissible. Our concern with the statute here is whether its language permits a trespassory invasion of the home or office, by general warrant, contrary to the command of the Fourth Amendment. As it is written, we believe that it does."

Held: the judgment is reversed.

Justice Vote: 6 Pro vs. 3 Con
  • Clark  Pro (Wrote majority opinion)
  • Douglas Pro (Wrote concurring  opinion)
  • Stewart  Pro (Wrote concurring opinion)
  • Brennan Pro (Joined majority opinion)
  • Fortas Pro (Joined majority opinion)
  • Marshall Pro (Joined majority opinion)
  • Black Con (Wrote dissenting opinion)
  • Harlan Con (Wrote dissenting opinion)
  • White Con (Wrote dissenting opinion)

The ACLU filed as amicus urging reversal; the US Supreme Court reversed the ruling of the Court of Appeals of New York in a 6-3 vote, giving the ACLU an apparent win.