Annual Reports of the New York State Legislative PAGE 3 4-5 6 Appendix: The Laws of New York State Regarding Elec- New York Constitution Bill of Rights § 12 Penal Law § 738 7 7 7-8 Supreme Court of the United States OCTOBER TERM, 1966 No. 615 RALPH BERGER, Petitioner, against NEW YORK, Respondent. On Writ of Certiorari to the Court of Appeals of New York. BRIEF FOR THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, AS AMICUS CURIAE IN SUPPORT OF RESPONDENT Interest of the Amicus Both questions certified by this Court in granting petitioner's application for certiorari are of direct and substantial interest to the Attorney General of the State of New York. The second question specifies the issue of the constitutionality of a statute which is part of New York's comprehensive scheme to limit and control electronic eavesdropping within our boundaries (Code of Crim. Proc. § 813-a). The New York Attorney General is charged with the defense of the enactments of our State Legislature 2 (See Executive Law §71). The first question certified by this Court involves the validity of the conviction obtained in a court of our State and upheld by our Court of Appeals. Furthermore, the New York Attorney General, as a prosecutor, is one of the officials entitled to apply for court orders permitting electronic eavesdropping under the Code of Criminal Procedure § 813-a. New York's Code of Criminal Procedure § 813-a, conforms precisely to the language and fully to the spirit of the Fourth Amendment's protection of the right of the people to be free of unreasonable search and seizure. Indeed, it is a part of a legislative program especially undertaken to protect the privacy of the individual and to limit, not to liberalize, the use of eavesdropping. The introduction of the recordings obtained pursuant to court order in the instant case was an appropriate use of this procedure and necessary to an investigation of utmost importance to the integrity of our state government. Concerned over the challenge to the validity of New York's statute regulating electronic eavesdropping and convinced that court-ordered eavesdropping does not jeopardize the fundamental rights of our citizens, but, on the contrary, is necessary for their personal safety and wholesome public life, we file this brief pursuant to Rule 42(4) of the Rules of this Court. We agree with and endorse fully the position taken by the District Attorney in defense of the New York statute. In light of the complete and scholarly discussion of the complex issues of constitutional law contained in respondent's brief, and in light of the wealth of material presented by the National District Attorneys Association and Attorneys General of several of our sister states as amicus curiae, we have limited the scope of this brief to a presentation of the total New York statutory scheme of which the challenged 813-a is but a part. 3 ARGUMENT The legislative history and companion statutes of § 813-a demonstrate that New York effectively prohibits all eavesdropping except by law enforcement officers acting with Court authorization upon a showing that there is probable cause within the meaning of the Fourth and Fourteenth Amendments. An examination of the New York laws regarding electronic eavesdropping* demonstrates that New York strictly limits and regulates this practice by restricting the circumstances in which eavesdropping may be employed and by punishing as felons all persons, including law enforcement officers, who act outside these strictures**. This statutory scheme is the result of the Legislatures's dedicated and considered commitment to the privacy and dignity of the individual. No other legislature in this Country has made a comparable effort to protect its citizens from the encroachment of modern electronic recording and amplifying devices into their private conversations. It is ironic that it is just the State which has debated and agonized over the right to privacy and which has produced a statutory scheme to protect that right whose acts are challenged as unconstitutional. The decision of New York not to prohibit all electronic eavesdropping by law enforcement officials was made upon careful consideration of the competing interests of the individual. This legislative resolution of the constitutional * These laws are reproduced as an appendix to this brief. **It is a felony for a law enforcement officer to eavesdrop except under Court order (§ 813-a) or in exceptional and very limited circumstances (§ 813-b). Within a year after passage of the statute, two plainclothes policemen were convicted under Penal Law §§ 738-41. Report 1959, p. 15. Evidence obtained by illegal eavesdropping is inadmissible in any civil or criminal proceeding (CPLR § 4506). |