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other methods for obtaining evidence. Surely, no just comparison may be drawn to the outrageous and brutal means of recovering evidence which have been condemned, ad hoc, as violations of Fourteenth Amendment Due Process. In weighing the constitutional significance of the sensation of abhorrence, the facts of life in law enforcement should not be shunned. And the fact is that necessary evidence revealing criminal activity and the guilt of criminals usually lies buried behind someone's curtilage of preferred privacy. In demanding the production of evidence for the prosecution of crimes, society commands its agents to probe through this curtain by reasonable and supervised procedures. The sacrifices of privacy and anonymity demanded of all citizens, witnesses and suspects alike, in this cause are an unavoidable price of living in a more secure community.

The urgent necessity to resort to extraordinary methods is demonstrated by the present case. In investigations of this type, the community seeks to purge a pervasive menace which corrodes the integrity of government itself. The corruption of powerful agencies of the state is at once a grave threat and a peculiarly inaccessible crime. Like the underworld activity which it invariably strengthens, the crime is often between conspirators none of whom can be expected to come forward with the testimony to convict the others. And in jurisdictions such as New York, where no conviction can be had on the uncorroborated testimony of an accomplice, independent proof makes the prima facie case. The hard-shelled resistance of organized criminal activity to conventional techniques of law enforcement has been well documented, along with the depth and extent of

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the penetration of this stain into the very fabric of our society. Abolition of warranted electronic quests for evidence would indisputably deprive society of its most effective tool to combat those who undermine the high ideals of a free society. Beyond these cases, which are the bulk of the eavesdrop's work, there are other crimes of grave consequences where stubborn barriers to proof will yield only to extraordinary devices. Inherently limited by manpower costs and judicial discretion, employment of electronics is no less justified in the pursuit of crimes of this nature.

Probable cause supports the order by which the eavesdrop evidence was obtained in the case at bar. The evidence adduced at trial was acquired in a surveillance of the office of Harry Steinman and included conversations in which the petitioner participated. The affidavit submitted to obtain this order spelled out clearly and completely the grounds for the reasonable belief that words would be spoken in that location by and between conspirators in a scheme to bribe the State Liquor Authority. Among the facts alluded to in the affidavit in question, was information learned in a prior existing surveillance of the office of Harry Neyer. Despite some cloudiness in the record pertaining to the manifest basis for the Neyer order, no present challenge to that order lies. For it is clear that the instant petitioner, who was not present in Neyer's office and had no interest in the premises, lacks standing to controvert the legality of that search. The subsequent utilization of the "fruits" of the Neyer installation in the Steinman application does not imbue the petitioner with a derivative status. For, as cases of conventional search demonstrate, even were the Neyer search unlawful, its product could be lawfully used against one whose rights were not trammelled by the initial illegality.

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POINT I

Court ordered eavesdropping, pursuant to Section 813-a of the New York Code of Criminal Procedure, is not proscribed by the United States Constitution [answering petitioner's Points I, III and IV, pp. 15-64, 74-81].

Introduction

At the trial of Ralph Berger for his participation in a scheme to bribe a state official, essential evidence to corroborate accomplice testimony [N. Y. Code Crim. Proc., $399] was adduced by the introduction of recorded conversations between the defendant and two co-conspirators. This evidence was obtained by means of a hidden microphone, secretly installed in the business office of Harry Steinman (one of the conspirators) pursuant to an ex parte order issued by a justice of the New York Supreme Court on the authority of Section 813-a of the New York Code of Criminal Procedure. Challenging the use of this evidence, the petitioner puts in issue the order, the statute, and indeed, the constitutionality of all electronic surveillance in the investigation and prosecution of crime. In a separate point, petitioner attempts to insert the issue of audibility of the tapes, illicitly circumventing the denial of certiorari on that question (brief, Pt. III). He argues that the quality of the tapes was poor, and that it therefore reflects detrimentally upon the whole process of eavesdropping. Suffice it to say, that the tapes were sufficiently audible to pass the scrutiny of a hearing by the court (R. 475-91), and thereafter convince a jury. Moreover, even assuming a malfunction of one machine used, the smuggled

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point finds no place in this case [Irvine v. California, 347 U. S. 128, 129-130 (1954)]. Petitioner's challenge to eavesdropping is not that it may sometimes fail, but that it works too well.

The several means by which law enforcement obtains the hidden evidence necessary to judge those who threaten the social order are, of course, subject themselves to the judgment of the Constitution. The broad, clear tones of that 18th Century language enunciate standards for official restraint which serve adequately to govern 20th Century techniques of evidence gathering. And viewed through the constitutional frame, electronic eavesdropping is fully defined as an advanced form of search and seizure, quite susceptible to regulation under the precepts of the Fourth Amendment. Electronic devices have been attacked on various grounds, and deemed by some to be inherently beyond the control of the Fourth Amendment. Analysis reveals, however, that other attacks fail and that the analogy between the acquisition of tangible and oral evidence, although not perfect, is so strong in essential particulars that if the strictures of the Fourth Amendment are observed, the Constitution is not offended by law enforcement's resort to this vital contemporary tool for unearthing essential proof otherwise inaccessible.

A brief history

Electronic eavesdropping is, needless to say, peculiarly a product of the scientific enlightenment. At common law, the problem was rather simple. "Eaves-droppers, or such as listen under walls and windows or eaves of a house, to hearken after discourse, and thereupon to frame

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slanderous and mischievous tales, are a common nuisance" [IV BLACKSTONE $168]. But the development of new carriers of communications concomitantly gave birth to schemes to intercept the messages. Interception of telegraph transmissions became widespread in the middle and late 19th Century, leading to laws protecting the property of the telegraph companies, although not the privacy of the users [LANDYNSKI, SEARCH AND SEIZURES AND THE SUPREME COURT 199 (1966); Rosenzweig, The Law of Wire Tapping, 33 CORNELL L. Q. 73 (1947)]. When the telephone was used by news agencies to carry dispatches, competing newspapers began stealing their rival's messages, leading to the prohibition of such practices by Illinois in 1895 and California in 1905 [LANDYNSKI, op. cit. supra, at 199; DASH, KNOWLTON & SCHWARTZ, THE EAVESDROPPERS 25-26 (1959)]. And government was not slow to perceive the utility of new methods, the first use of electronic interception for criminal prosecution having occurred in New York City in 1895, during a police investigation of a charity frauds case [LANDYNSKI, op. cit. supra, at 199].

In 1918, with the entry of the United States into the First World War, Congress abolished all wiretapping [40 Stat. 1017] as an internal security measure, since the telephone system came under government control for the duration of the war. At the end of the conflict, and with the return of the telephones to private ownership, the legislation lapsed [Note, Wiretapping and the Congress, 52 MICH. L. REV. 430, 436 (1954)], and the United States, in turn, employed electronic interception, particularly to enforce the prohibition of the Eighteenth Amendment [LanDYNSKI, op. cit. supra, at 199-200]. Such investigations