from normal civilian practice in initiating the search, it seems to hold to the view that, apart from searches necessary to safeguard the security of command, the requirement that probable cause exist is precisely the same in both jurisdictions. The authority for conducting the socalled "commanding officer's" search is found in paragraph 152, Manual for Courts-Martial, United States, 1951, which states that:

The following searches are among those which are lawful:

A search of property which is owned or controlled by the United States and is under the control of an armed force, or of property which is located within a military installation or in a foreign country or in occupied territory and is owned, used, or occupied by persons subject to military law or to the law of war, which search has been authorized by a commanding officer (including an officer in charge) having jurisdiction over the place where the property is situated or, if the property is in a foreign country or in occupied territory, over personnel subject to military law or to the law of war in the place where the property is situated . . .

The Court of Military Appeals has stated that the basis for this rule of discretion

THE SUPREME COURT DECISIONS

The question of the admissibility of evidence obtained by Federal agents by electronic eavesdropping has been squarely raised in at least three cases decided by the U.S. Supreme Court. The first of these was the case of Goldman v. United States, decided in 1941. In that case Federal agents unlawfully obtained entrance to accused's office (by trespass). There they installed a microphone with wires leading to the next room where it was to be monitored. When earphones were connected, however, the micro

7. United States v. Brown, 10 USCMA 482, 488 (1959).

8. United States v. Doyle, supra, note 4. This rule has been expressly recognized and approved by the Federal courts. United States v. Best, 76 F. Supp. 857 (D. Mass. 1948); Richardson v. Zuppann, 81 F. Supp. 809 (M.D. Pa. 1949).

9. 316 U.S. 129 (1941).

phone did not work. They then made use of a "detectaphone" to monitor conversations in the adjoining room. This was a device with a receiver so sensitive that, when placed against the partition wall, it would pick up sounds originating in accused's office. With this, the agents overheard, and a stenographer transcribed, conversations between the accused and others including one end of certain telephone conversations. Evidence of these conversations was introduced at trial over accused's objections. The question of the admissibility of the evidence reached the U.S. Supreme Court, and in a closely divided decision, that Court held the evidence to be admissible.

The Court's opinion disposed of three objections as to the admissibility of the evidence which were raised by accused.

The first related to a claim that the divulgence of what the accused said into the telephone was a violation of Section 605 of the Federal Communications Act.10 In holding that this section provided no protection to the accused in this case, the Court reasoned that:

The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation."

The second contention of the accused which was rejected by the court was that the original unlawful entry by the Federal agents rendered what was subsequently heard by use of the detectaphone illegal. In ruling on this question the court accepted the findings of the two lower courts"... that the trespass did not aid materially in the use of the detectaphone." 12

The third contention was that where one talks in his own office and intends his conversation to be confined within the four walls of the room, it is not to be assumed he takes the risk of someone's use of a delicate detector in the next room. In advancing this contention the accused attempted to distinguish the case of Olmstead v. United States,13 which had held that evidence obtained by tapping telephone wires off the premises of accused was not rendered inadmissible in a Federal prosecution by virtue of the 4th and 5th Amendments of the U.S. Constitution.

In overruling this contention, the Supreme Court stated:

We think, however, the distinction is too nice for practical application of the constitutional guaranty and no reasonable or logical distinction can be drawn be

10. Act of June 19, 1934, 48 Stat. 1103, 47 U.S.C.A. § 605. 11. 316 U.S. at 133.

12. 316 U.S. at 135. 13. 277 U.S. 438 (1928).

tween what federal agents did in the present case and state officers did in the Olmstead case.1

The Court also refused to overrule the Olmstead

case.

The second case in which the Supreme Court considered the question of evidence obtained by electronic eavesdropping was On Lee v. United States,15 decided in 1952. In the intervening years since the Goldman decision, electronic art had made certain advances. The equipment in this case was more sophisticated than a mere detectaphone.

In the On Lee case the Government utilized an undercover agent who was an old acquaintance of accused. This undercover agent, one Chin Poy, sauntered into On Lee's laundry and engaged the accused in a casual conversation in the course of which accused made certain incriminating statements. Unbeknown to accused, Chin Poy was "wired for sound." He had a small microphone in his inside overcoat pocket connected to a small transmitter and an antenna running up his arm. Another Federal agent equipped with a receiver was able to watch On Lee and Chin Poy through the front window of the laundry and could hear the conversation by means of the receiver. A second conversation which occurred a few days later on the street was similarly overheard. Chin Poy was not called to testify but the agent who was monitoring the conversations by radio was allowed to testify as to the conversations he heard with the aid of the receiving set. The accused contended that the evidence should have been excluded on the ground that it was obtained by an unlawful search and seizure.

Accused's theory, which was based on dictum appearing in the Goldman case, was that if a trespass occurred, the evidence would be excluded. Accused contended that a trespass occurred either because Chin Poy's entrance was obtained by fraud, or because the subsequent "unlawful conduct" of Chin Poy after he got inside rendered his conduct "trespass ab initio." Again, a closely divided court rejected each of these contentions finding that Chin Poy entered accused's laundry ". . . with the consent, if not by the implied invitation, of the petitioner.' The Court stated further that:

99 16

Only in the case of physical entry, either by force, . . . by unwilling submission to authority, . . . or without any express or implied consent, . . . would

14. 316 U.S. at 135.

15. 343 U.S. 747 (1952). 16. 343 U.S. at 751-752.

the problem left undecided in the Goldman case be before the Court."

The "problem left undecided in the Goldman case" finally reached the Supreme Court in 1961. In that year the Court handed down its decision in the case of Silverman v. United States.18 In that case Federal agents in the District of Columbia suspected that a particular residence was being used as a gambling headquarters. From an adjacent row house these agents inserted a "spike mike" through a crevice in the party wall until it struck a heating duct in the adjoining house. This duct acted as a very good sounding board, and by means of an amplifier and earphones, the agents were able to monitor the conversations in the adjoining house. At the subsequent trial the agents were permitted to testify as to what they heard. In setting aside the convictions in this case, the Court stated:

Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions in which a closely divided Court has held that eavesdropping by other electronic means did not amount to an invasion of Fourth Amendment rights." Those decisions by a "closely divided Court" are, of course, Goldman and On Lee.

The Court then went on to hold that the unauthorized physical penetration was sufficient to distinguish this case from Goldman and On Lee. Such unauthorized physical penetration constituted an unreasonable search. In holding it unlawful under the Fourth Amendment, the Court stated that its decision was ". . . based upon the reality of an actual intrusion into a constitutionally protected area."20

On the basis of the foregoing decisions, it is possible to draw some tentative conclusions. These are:

1. Where evidence of conversations is obtained by electronic eavesdropping, any bar to its admissibility will normally be based on Fourth Amendment protections.

2. Evidence obtained by means of electronic eavesdropping with the most modern electronic devices is not per se inadmissible in Federal criminal trials.

17. Id at 752-753. 18. 365 U.S. 505 (1961). 19. 365 U.S. 505, 509-510.

20. 365 U.S. at 512. In limiting its decision to this narrow point, the Court refused to sustain a "broad brush" claim that the rationale of the Court's prior decisions in On Lee, Goldman and Olmstead should be re-examined. Although Justice Douglas would have favored such a re-examination (see his separate concurring opinion at 365 U.S. 512), two members of the Court joined in the Court's opinion only on the theory that the unauthorized physical penetration removed the case from the coverage of such earlier decisions. (See concurring opinion of Justices Clark and Whittaker at 365 U.S. 513).

3. The evidence is not rendered inadmissible by Section 605 of the Communications Act merely because it consists of one end of a telephone conversation.

4. The evidence is not rendered inadmissible because the agent on whom the microphone is concealed may be a "decoy" or may have gained admission to the accused's premises by a false pretense.

5. If, however, there is an unauthorized physical penetration into a "constitutionally protected area," the evidence obtained thereby is inadmissible.

OTHER FEDERAL DECISIONS

Some of the lower Federal courts have considered electronic eavesdropping questions. Although the number of such decisions is not great, they have to some extent filled out the bare bones of the Supreme Court's rulings.

Thus, a Federal agent's room may be "bugged" and there is no constitutional barrier to the admissibility of the evidence obtained as conversation therein between the agent and an accused. If a recording of the overheard conversation is made but is unintelligible at trial, an agent who monitored the conversation by radio at the time the recording was made may testify as to his recollection of the conversation.22 However, where a secret government agent actually participates in conversations between the accused and his counsel, evidence of such conversations is rendered inadmissible not by the means of eavesdropping but by virtue of the intrusion into a confidential relationship.23 The fact the agent who is "wired for sound" is not licensed to operate a radio transmitter pursuant to the Federal Communications Act is no bar to the admissibility of the evidence obtained.24

MILITARY SEARCHES AND SEIZURES

As earlier stated, the law applicable to searches in the military service is basically the same as that applied by the Federal courts.25 The most significant exception, of course, is the so-called "commanding officer's search" authorized by paragraph 152, MCM 1951, and approved by a number of USCMA and Federal court decisions.26 Although the commanding officer's

21. Tobisco v. United States, 298 F. 2d 208 (9th Cir. 1962), a postSilverman decision; United States v. Kabot, 295 F. 2d 848 (2d Cir. 1961).

22. Lott v. United States, 230 F. 2d 915 (5th Cir. 1956), cert. den., 351 U.S. 953 (1956).

23. Caldwell v. United States, 205 F. 2d 879 (D.C. Cir. 1953). 24. Carbo v. United States, 314 F. 2d 718 (9th Cir. 1963).

25. United States v. Doyle, supra, note 4.

26. See note 8, supra.

authorization for a search cannot be stated to be the equivalent of the civilian magistrate's search warrant, the Court of Military Appeals has held that it serves the same purpose in protecting the military community against unreasonable searches as does the search warrant for the civilian community.27 Although the early decisions of the Court of Military Appeals would imply that the commanding officer's authorization need not meet the standard of "probable cause," 28 later decisions would appear to require that he base his decision on the existence of probable cause.29 In any event, he may not act on mere suspicion, unless, apparently, a search is necessary to safeguard the security of his command.30

In determining whether probable cause exists, the commanding officer need not require the "affidavit" customarily relied on by the civilian magistrate. As stated in the Ness case:

31

....

Probable cause to search exists if the facts and circumstances justify a prudent man in concluding that an offense has been or is being committed . . . Knowledge of the operative facts and circumstances need not be based on the direct, personal observations of the police officer applying for authority to search. It is sufficient if he acts on the report of a reliable informant which is supported by corroborating circumstances.32

As is evident from the foregoing discussion, the Court of Military Appeals has considered search and seizure questions on many occasions and under a variety of circumstances. To the knowledge of the author, however, that court has never considered the question of electronic eavesdropping directly. The Board of Review decisions reported in the Court-Martial Reports similarly do not appear to have directly involved a case of electronic eavesdropping.

The Court of Military Appeals has on one occasion, however, considered a closely related question in the case of United States v. Noce.33 That case involved the communicating of obscene statements over a base telephone exchange. In an effort to detect the caller, agents, with the permission of the post commander, placed a monitor on certain post telephones. At trial evidence obtained as a result of the tele27. United States v. Florence, 1 USCMA 620, 5 CMR 48 (1952). 28. See United States v. Doyle, 1 USCMA 545, 4 CMR 137 (1952), United States v. Florence, 1 USCMA 620, 5 CMR 48 (1952). 29. See United States v. Brown, 10 USCMA 482, 28 CMR 48 (1959); United States v. Ness, 13 USCMA 18, 32 CMR 18 (1962); United States v. Battista, 14 USCMA 70, 33 CMR 282 (1963).

30. United States v. Brown, and United States v. Battista, supra, note 9.

31. United States v. Doyle, supra, note 4.
32. 13 USCMA 18, 23, 32 CMR 18, 23 (1962).
33. 5 USCMA 715, 19 CMR 11 (1955).

phone tap was admitted over accused's objection.

The court upheld the admissibility of the evidence, grounding its ruling on the inapplicability of section 605 of the Communications Act to a base telephone system. Although the search and seizure question was not mentioned in the principal opinion in the Noce case, Judge Lattimer, in a dissenting opinion, summarized his understanding of the law of intercepted communications. He stated:

There are certain principles which have been fixed by the Supreme Court and I can enumerate them in short order. First, it is now certain that evidence obtained by the use of microphones or microphones implemented by amplifying devices, absent trespass, is admissible in evidence. The Supreme Court has held without equivocation that evidence obtained in that manner does not violate the Constitution of the United States or the provisions of the Communications Act, . . .3

34

Suppose, then, a comanding officer of a naval installation or activity is advised by one of his investigative agents that he has reason to suspect criminal conduct on the part of a member of his command within a particular area or space of the installation. The agent requests permission to "bug" the space in order to catch the culprit in the act. If the space involved is a public space or one subject to the exclusive control of the command, there would appear to be no legal impediment to the "bugging" of the space and the later admission into evidence of the information obtained.

Suppose, however, that the space is one that is assigned exclusively to the suspected person, even though it may technically remain under the control of the commanding officer; for example, such space as a BOQ room, barracks room or assigned on-post quarters. Under the rationale of the Goldman case,35 absent physical trespass, the surreptitious entry and monitoring of conversations in these "private" spaces would appear to be lawful. Any evidence obtained as a result would appear to be admissible provided other procedural requirements were met.

Therefore, to insure later admissibility of the evidence obtained, the commanding officer's search authorization must be granted strictly in compliance with the criteria earlier discussed.

PRODUCTS OF THE SEARCH

One additional hurdle to later admissibility of the evidence obtained comes into view at this

34. 5 USCMA 715, 726, 19 CMR 11, 22.

35. Supra, note 9.

point. In search and seizure cases the Federal courts and the Court of Military Appeals have consistently drawn a distinction between the fruits or instruments of a crime and the mere evidence of the previous commission of a crime. The former are properly the subject of search (and seizure) while the latter are not.36

37

When it comes to categorizing certain objects as instruments or fruits of a crime and others as mere evidence, the Court of Military Appeals, not unlike other Federal courts, has had some difficulty in drawing a very distinct dividing line. In United States v. Rhodes, the court held that a diary was not mere evidence where it constituted records and was part of unlawful undertakings. Dicta in United States v. Marrelli 38 would indicate that cancelled checks are subject to seizure as instruments of crime in bad check offenses. In United States v. DeLeo,39 slips of paper used by the accused to trace a forged signature were apparently held to be instruments and not mere evidence of a crime. In United States v. Webb, a written acknowledgment of an obligation to pay a debt was held to be not merely evidentiary material.40

41

In the recent Vierra case, however, the court held that a card, characterized by the court as an "advertising lure," which the accused may have used for identification in cashing bad checks, was mere evidence and not an instrument of a crime. Similarly, in United States v. Battista,42 search for and seizure of photographs which might provide evidence of the accused's guilt of sodomy was held unlawful.

Where the object of a search authorization is not the seizure of physical objects but the overhearing of private conversations, the drawing of the distinction may be difficult indeed. Most Federal cases in which the admissibility of evidence obtained by electronic eavesdropping has been raised have involved either narcotics or gambling offenses. The conversations overheard concerned the actual sale of narcotics or making of illegal wagers. It would seem that under the dichotomy of instruments or fruits of crime and mere evidence, such conversations would fit in the former category. On the other hand, where the conversations merely relate to

(Continued on page 239)

36. United States v. Battista, 14 USCMA 70, 33 CMR 282 (1963), and cases cited therein; United States v. Vierra, 14 USCMA 48, 33 CMR 260 (1963), and cases cited therein.

37. 3 USCMA 73, 11 CMR 73 (1953).

38. 4 USCMA 276, 15 CMR 276 (1954). 39. 5 USCMA 148, 17 CMR 148 (1954). 40. 10 USCMA 422, 27 CMR 496 (1959). 41. 14 USCMA 48, 33 CMR 260 (1963). 42. 14 USCMA 70, 33 CMR 281 (1963).

ENVISION

NVISION BEING ASSIGNED as the first legal officer to a recently commissioned Naval Air Station which has no jurisdiction ceded to it by the State, after completing a tour of duty as legal officer at a Naval Training Center which has exclusive jurisdiction. The foregoing frame of reference may not suggest to the reader any patent legal problem, so a brief comparison of the legal status of the two military installations will be made.1 The Naval

*Commander Ward Boston, Jr., USN, is Legal Officer at NAS Lemoore, California. He holds the AB and LL.B. degrees from the College of William & Mary. He is a member of the Virginia Bar Association, American Bar Association, and the bar of the United States Court of Military Appeals and the United States Supreme Court.

1. In regard to the question of jurisdiction over Federal areas within the States, the principal jurisdictional statuses are:

a. Exclusive legislative jurisdiction or, briefly, exclusive jurisdiction,

b. Concurrent legislative jurisdiction or, briefly, concurrent jurisdiction,

c. Partial legislative jurisdiction or, briefly, partial jurisdiction, and

d. Proprietorial interest only (sometimes referred to as proprietary interest).

"Jurisdiction", as used in this context, means briefly the authority to make and/or enforce Federal law for the people in the area." An outstanding study on the subject of jurisdiction was prepared in 1956 and 1957 by interested Government agencies; the study is in two parts and titled "Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States." The report may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C., 20402. Part I, titled "The Facts and Committee Recommendations", costs 75¢; Part 11, titled "A Text of the Law of Legislative Jurisdiction", costs $1.25.

The following are definitions of the four different statuses as found in the Report:

The term "Exclusive jurisdiction" is applied to situations where the Federal Government has received all the authority of the State with no reservation for the State except for the right to serve process resulting from activities which occurred off the land involved. In addition to this explicit exception there are three rules of law which allow State law to be operative in the Federal areas either as law of the State or as Federalized law:

a. Federal retrocession statutes have had the effect of allowing the States to exercise legislative authority in certain matters notwithstanding they ceded exclusive legislative jurisdiction. An example is the Buck Act (4 USC § 104-110) which permits the imposition and collection of State sales and use taxes and income taxes within Federal areas except for taxes on the Federal Government. Other retrocession statutes relate to workmen's compensation, unemployment compensation, wrongful death, taxation of leasehold interests and administration of estates of residents of Veterans' Administration facilities (40 USC § 290, 26 USC 3305 (d), 16 USC § 457, 10 USC § 2667 (e), and 38 USC § 5208, respectively). In addition retrocession is used for suffrage, access to the local courts, policing of highways and similar matters.

Training Center dates its commissioning back to the early 20's and the District Public Works Officer has recorded documents reflecting its exclusive jurisdictional status. As a result of such jurisdiction, all issues which were raised by the local authorities incident to State legislative

b. In order to deal with crimes committed in Federal areas, Congress enacted the Assimilative Crimes Act (18 USC § 13) which adopts for such enclaves, as Federal law, the State penal law which is in effect at the time the crime is committed. See also 10 USC § 2671 concerning hunting and fishing. For some specific crimes, the Assimilative Crimes Act is superseded by enactments of Congress dealing specifically with those crimes.

c. The foregoing would still leave a vacuum with respect to civil matters for which Congress has not enacted laws for the Federal enclaves. In order to avoid such vacuum, the courts regard State laws relating to civil matters in force and effect at the time of the acquisition by the Federal Government to remain effective in federalized form, if not in conflict with Federal law, until the Federal Government enacts modifying law. This prinIciple is derived from the rule of international law that, when a sovereign takes over territory of another, the laws of the original sovereign in effect at the time of the taking-over which are not inconsistent with the law of the second continue in effect, as laws of the succeeding sovereign, until changed by that sovereign. (Chicago, Rock Island & Pacific Ry. v. McGlinn, 114 U.S. 542 (1885), followed in numerous more recent cases.)

The term "Concurrent jurisdiction" is applied in those instances where, in granting to the United States authority which would otherwise amount to exclusive jurisdiction, the State reserved to itself the right to exercise, concurrently with the United States, all of the same authority.

The term "Partial jurisdiction" applies to situations in which a State has granted certain of the State's authority over an area to the Federal Government but has reserved to itself the right to exercise, by itself or concurrently with the United States, other authority constituting more than the right to serve process.

The term "Proprietorial interest only" applies where the Fed. eral Government has acquired some right or title to an area in a State but has not obtained any measure of the State's authority over the area. By virtue of its functions and powers under various provisions of the Constitution, however, the Federal Government has many powers and immunities with respect to its operations in areas in which it acquires an interest. It may not be disturbed in the exercise of those powers by the State; in other words, Federal operations must be free from interference.

Under Article I section 8 clause 17 of the Constitution, the Federal Government has exclusive jurisdiction over areas acquired by the Government with the consent of the State involved. Consequently, consent of the State is essential for exclusive jurisdiction of the Federal Government over an area acquired. In addition to consent to the acquisition there are two other methods of ensuring Federal jurisdiction: the State may cede jurisdiction to the Federal Government by State statute, or the Federal Government reserves jurisdiction over certain areas in connection with the admission of a State into the Union. The general method by which States now transfer varying degrees of jurisdiction to the Federal Government is the enactment of a State statute. The transfer requires acceptance by the head of the Federal department or agency concerned in accordance with 40 USC § 255 (1958).