76

this reason, a special prosecutor was appointed in 1935 in New York County. York County. Within ten years he and his successor had broken the back of an alliance between politics and organized crime in that county and had brought to justice more of the leaders of organized crime than any other law enforcement office in the nation. That success was attributable to honesty, competency, committment, adequate personnel resources, and necessary legal tools, chiefly electronic surveillance. The challenge that faced that prosecutor in 1935, and which is still with us today, is now a problem which is fast becoming generalized throughout the United States. This brief has reviewed in some detail the nature of that problem. It has, in addition, given attention to our constitutional traditions. There is nothing, we suggest, in those traditions which would require that problem must be faced without the legal tools necessary to get the job done.

For the above reasons, therefore, it is respectfully submitted that the decision of the Court of Appeals of New York sustaining the constitutionality of Section 813-a be affirmed.

Respectfully submitted,

ELLIOT L. RICHARDSON, Attorney General, Common-
wealth of Massachusetts,

ROBERT Y. THORNTON, Attorney General, State of
Oregon,

NATIONAL DISTRICT ATTORNEYS' ASSOCIATION,

211 East Chicago Avenue, Chicago, Illinois 60611

Of Counsel:

G. ROBERT BLAKEY,

Notre Dame Law School,

Notre Dame, Indiana,

219-284-6626

IN THE

LED

APR 8 1967

JOHN F. DAVIS, OLERK

United States Constitution, Amendment IV

New York Constitution, Article I, §12

2 2 3

New York Code of Criminal Procedure, §813-a

3

4

STATEMENT

A. THE PRE-TRIAL HEARING CONCERNING THE EAVES

DROP ORDERS

B. THE EVIDENCE

The People's Case

The Playboy conspiracy

The Tenement conspiracy

SUMMARY OF ARGUMENT

6

9

9

9

19

25

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

Introduction

A brief history

The Goldman-Silverman distinction

The barrier of privacy; a suggested delineation

The "mere evidence" argument

The particularity of the warrant argument

The generality argument

The curtailment of speech and infringement of
privacy arguments

The essential repugnance argument

POINT II-Electronic surveillance, conducted within the limits of the Fourth Amendment, is an indispensable adjunct of society's obligation to discover evidence of crime

69

TABLE OF AUTHORITIES

PAGE

Cases:

Abel v. United States, 362 U. S. 217 (1960).
Aguilar v. Texas, 378 U. S. 108 (1964)..

Bennet v. United States, 145 F. 2d 270 (4th Cir. 1944)
Boles v. Commonwealth, 304 Ky. 216, 200 S. W. 2d

467 (1947)

Boyd v. United States, 116 U. S. 616 (1886)

Calo v. United States, 338 F. 2d 793 (1st Cir. 1964)
Carroll v. United States, 267 U. S. 132 (1925)
Childers v. Commonwealth, 286 S. W. 2d 369 (Ky.
1955)

Clinton v. Virginia, 377 U. S. 158 (1964)

43,47

91

56

47

33, 41, 44

51

91

36

Crowell v. State, 147 Tex. Crim. 299, 180 S. W. 2d 343

(1944)

36

Curcio v. United States, 354 U. S. 118 (1957)

42

Davis v. United States, 328 U. S. 582 (1946)

47

District of Columbia v. Little, 178 F. 2d 13 (D. C.

Cir. 1949)

54

Ellison v. United States, 206 F. 2d 476 (D.C. Cir. 1953)

36

Entick v. Carrington, 19 Howell's State Trials 1029 (1765)

43

Evans v. United States, 242 F. 2d 534 (6th Cir. 1957), cert. den. 353 U. S. 976 (1957)

91

Fisher v. United States, 205 F. 2d 703 (D. C. Cir.

1953)

36