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Detective Walter Finley testified he saw the defendant enter a phone booth in the lobby of the New York Hospital at about 6 p.m. on June 27, 1962 and overheard a portion of the conversation where the defendant said: "You had better get in touch with Harry, he called down there at a quarter to five and the approval was in" (R. 247-8). On June 29, 1962, Detective Finley took motion pictures of the defendant exiting from New York Hospital (id.; Exh. 46).

Detective Boleslaw Baransky testified that on June 16, 1962, pursuant to a court order, he installed a microphone in Room 801 at 15 East 48th Street, the office of Harry Steinman (R. 294-5, R. 309). The microphone was concealed on the wall, about ten inches below the edge of a desk, and a cover was placed over it (R. 309-10). Sounds in the room were transmitted over wires leading from the microphone to a tape recorder located in the basement of a nearby building (R. 295, R. 313-14).

Detective William Reilly testified that on June 28, 1962, he listened to and recorded, by means of an electronic eavesdropping device, a conversation emanating from the office of Harry Steinman in which Steinman and the defendant participated (R. 286, R. 329). He also recounted his independent recollection of the conversations he overheard (R. 287, R. 297, R. 293). There were no erasures by accident while he was supervising the actual origi nal recording (R. 346-7). When he subsequently replayed the tape, in preparing a transcript of the conversations thereon, he made no erasures, deletions or additions (R. 439-40). The transcript (Exh. 63) of the tape that he pre

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pared with the assistance of two other detectives was a true and accurate transcript of the conversation he recorded on June 28th (R. 390-1), and Detective Reilly was able to identify the voices on the tape (R. 282, R. 287). [June 28th was the date Jacklone was to have delivered the balance of the $7,500 bribe to the defendant but failed to do so.] On the tape (Exh. 61A) the defendant complained at length to Steinman that the money had not been delivered as promised and he (Berger) had an appointment at the hospital.

Detective Sidney Berkowitz testified that on June 29, 1962, he overheard and recorded by means of an electronic eavesdropping device, conversations emanating from Harry Steinman's office in which the defendant, Steinman, and Jacklone participated (R. 347-8). He also testified as to how he was able to identify the voices on the tape (R. 3489, R. 354, R. 358-9). He never made any additions, deletions or erasures on the tape of June 29th (R. 446-7). Detective Berkowitz also prepared a transcript (Exh. 62) of the conversation on the tape which was a true and accurate transcript of the conversation recorded on the tape (R. 359-60). Under cross-examination, Detective Berkowitz carefully explained the mechanics of preparing the transcript and how he differentiated in the transcript between pauses and inaudible portions (R. 360-90). On the recording (Exh. 61A), Frank Jacklone is heard to deliver the $7,500 to the defendant who then counts it. Steinman is heard to tell Jacklone to make out a check to Harry Neyer for $250.

Frank Jacklone, recalled, testified that he had listened to this tape recording of June 29th (Exh. 61A), compared

77-540 O-67-75

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it with the transcript of his recorded conversation (Exh. 63) and that both the tape and the transcript were true and accurate reproductions of that conversation (R. 449-50).

Detective Henry Cronin testified that on December 10, 1962, the District Attorney of New York County instituted reciprocal witness proceedings in Cook County, Illinois, pursuant to Section 618-(a) of the Code of Criminal Procedure, to obtain the defendant's testimony before a New York County Grand Jury (R. 275-6). [The defendant never testified before the grand jury (R. 298-9)]. On December 10, 1962, Berger was served with process directing his appearance before the Criminal Court of Cook County (R. 275-7). The defendant then accompanied the police officers to the Chicago Criminal Courts Building (R. 268-9) and while standing in a corridor of that building awaiting his attorney, Berger was observed surreptitiously tearing up two cards and discarding them in two separate locations. One card bore the name and phone number of Harry Neyer and the other the name and phone number of Martin Epstein, Chairman of the New York State Liquor Authority (R. 268-70; Exhs. 56, 57).

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Summary of Argument

An electronic search for oral evidence is a search within the cognizance of the Fourth Amendment. While the right of the people to be secure against unreasonable intrusions of the state should include assurance against any electronic penetration into a constitutionally protected area, the right is subject to suspension on a court-issued order, founded upon probable cause to believe evidence of crime will be discovered by the search. Although spoken words are of "evidentiary value only," they are not immune to seizure on that account. The so-called "mere evidence rule," ill-founded on a medieval superstition refined into a property doctrine of escheat and generally in judicial and scholarly disrepute, must be stricken from the law of evidence.

The constitutional mandate for particularity in the description of incriminating matter to be sought can be met adequately in the case of intangible evidence. A warrant such as that in the instant case, which identifies the object of the search by reference to the criminal activity to which it pertains conforms to standards of particularity established in conventional search and seizure decisions. Nor is a search for speech necessarily indiscriminate or general because the hunters perceive innocuous conversations in the pursuit of their object. Broad perception characterizes all searches, which are only limited spatially by the Constitution. This implicit approval of deep probes into private and innocent property, by compelling analogy, tolerates as well overhearing irrelevant conversations. The Fourth

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Amendment's companion requirement of particularity in the designation of the "thing" to be seized can also be applied, albeit somewhat less readily, to the acquisition of intangibles. The guiding principles of the Constitution should be interpreted to govern the more sophisticated techniques of modern technology where interpretation does no violence to their essential import. Application requires definition of the nature of a seizure of words. Plainly, neither hearing nor recording speech constitutes a seizure, as neither viewing nor photographing tangibles is regarded as seizing them. Rather the seizure of oral evidence occurs when some use is made of what is perceived, either as evidence or as leads to other evidence. And a particular prior description of the speech of which such use may be made is altogether possible, and indeed was given in the case at bar.

The lawful process of secretly acquiring criminal speech does not operate as a curtailment of free expression in derogation of the First Amendment. Nor does public anxiety concerning wide use of electronic devices justify abolition of the court-regulated search. Realistically, it is unfair to project a "hagridden" populace, fearful of expression and insecure in their private lives, as a result of the limited use of electronic surveillance in aid of law enforcement.

Underlying the ardent condemnation of eavesdropping voiced in many quarters is an essentially emotional repugnance for the technique. Distasteful as the unseen ear of government may be, resort to such surreptitious discovery of crime differs neither in kind nor degree from

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