Section 605 of the Federal Communications Act, which provides
that "no person not being authorized by the sender shall intercept
any communication and divulge or publish" the contents thereof to
any person, and which has been construed to render such intercepted
communications inadmissible as evidence in federal courts, does not
exclude such intercepted communications from evidence in criminal
proceedings in state courts. Pp.
344 U. S.
199-204.
___ Tex.Cr.R. ___,
246
S.W.2d 174, affirmed.
Petitioner was convicted in a Texas state court as an accomplice
to the crime of robbery, upon evidence obtained by wiretapping. The
Court of Criminal Appeals of Texas upheld the conviction. ___
Tex.Cr.R. ___,
246
S.W.2d 174,
rehearing denied, ___ Tex.Cr.R. ___, 246
S.W.2d 179. This Court granted certiorari. 343 U.S. 975.
Affirmed, p.
344 U. S.
204.
MR. JUSTICE MINTON delivered the opinion of the Court.
The petitioner, Schwartz, a pawnbroker, entered into a
conspiracy with Jarrett and Bennett whereby the latter two were to
rob places to be designated by Schwartz and
Page 344 U. S. 200
bring the loot to him to dispose of and divide the proceeds with
them. Pursuant to the plan, Jarrett and Bennett robbed a woman in
Dallas, Texas, of her valuable jewels and brought the loot to the
petitioner. After the petitioner repeatedly delayed settlement with
the robbers, the thieves finally fell out, which proved very
helpful to the police. The petitioner tipped off the police where
they could find Jarrett. After Jarrett had been in jail about two
weeks, he consented to telephone the petitioner from the sheriff's
office. With the knowledge and consent of Jarrett, a professional
operator set up an induction coil connected to a recorder amplifier
which enabled the operator to overhear and simultaneously to record
the telephone conversations between Jarrett and the petitioner.
These records were used as evidence before the jury that tried and
convicted the petitioner as an accomplice to the crime of robbery.
The records, admitted only after Jarrett and the petitioner had
testified, corroborated Jarrett and discredited the petitioner. The
Court of Criminal Appeals of Texas upheld the conviction, ___
Tex.Cr.R. ___,
246
S.W.2d 174,
rehearing denied, ___ Tex.Cr.R. ___, 246
S.W.2d 179. We granted certiorari, 343 U.S. 975.
Petitioner contends that § 605 of the Federal Communications Act
[
Footnote 1] makes inadmissible
in evidence the records of intercepted telephone conversations
without the petitioner's consent. The pertinent provision of the
statute reads as follows:
". . . no person not being authorized by the sender shall
intercept any communication and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such
intercepted communication to any person. . . . "
Page 344 U. S. 201
Section 501 of 47 U.S.C. provides a penalty for the violation of
§ 605.
We are dealing here only with the application of a federal
statute to state proceedings. Without deciding, but assuming for
the purposes of this case, that the telephone communications were
intercepted without being authorized by the sender within the
meaning of the Act, the question we have is whether these
communications are barred by the federal statute, § 605, from use
as evidence in a criminal proceeding in a state court.
We think not. Although the statute contains no reference to the
admissibility of evidence obtained by wiretapping, it has been
construed to render inadmissible in a court of the United States
communications intercepted and sought to be divulged in violation
thereof,
Nardone v. United States, 302 U.
S. 379, and this is true even though the communications
were intrastate telephone calls.
Weiss v. United States,
308 U. S. 321,
308 U. S. 329.
Although the intercepted calls would be inadmissible in a federal
court, it does not follow that such evidence is inadmissible in a
state court. Indeed, evidence obtained by a state officer by means
which would constitute an unlawful search and seizure under the
Fourth Amendment to the Federal Constitution is nonetheless
admissible in a state court,
Wolf v. Colorado,
338 U. S. 25, while
such evidence, if obtained by a federal officer, would be clearly
inadmissible in a federal court.
Weeks v. United States,
232 U. S. 383. The
problem under § 605 is somewhat different, because the introduction
of the intercepted communications would itself be a violation of
the statute, but, in the absence of an expression by Congress, this
is simply an additional factor for a state to consider in
formulating a rule of evidence for use in its own courts.
Enforcement of the statutory prohibition in § 605 can be achieved
under the penal provisions of § 501.
Page 344 U. S. 202
This question has been many times before the state courts, and
they have uniformly held that § 605 does not apply to exclude such
communications from evidence in state courts.
Leon v.
State, 180 Md. 279, 23 A.2d 706;
People v. Stemmer,
298 N.Y. 728, 83 N.E.2d 141;
Harlem Check Cashing Corp. v.
Bell, 296 N.Y. 15, 68 N.E.2d 854;
People v.
Channell, 107 Cal. App.
2d 192, 236 P.2d 654. While these cases are not controlling
here, they are entitled to consideration because of the high
standing of the courts from which they come.
Texas itself has given consideration to the admissibility of
evidence obtained in violation of constitutional or statutory law,
and has carefully legislated concerning it. In 1925, Texas enacted
a statute providing that evidence obtained in violation of the
Constitution or laws of Texas or of the United States should not be
admissible against the accused in a criminal case. [
Footnote 2] In 1929, this Article 727a of the
Texas Code of Criminal Procedure was amended to provide that
evidence obtained in violation of the Constitution or laws of Texas
or the Constitution of the United States should be inadmissible in
evidence, [
Footnote 3] thus
eliminating from the coverage of the statute evidence obtained in
violation of the laws of the United States.
Where a state has carefully legislated so as not to render
inadmissible evidence obtained and sought to be divulged in
violation of the laws of the United States, this Court will not
extend by implication the statute of the United States so as to
invalidate the specific language of the state statute. If Congress
is authorized to act in a field, it should manifest its intention
clearly. It will not be presumed that a federal statute was
intended to
Page 344 U. S. 203
supersede the exercise of the power of the state unless there is
a clear manifestation of intention to do so. The exercise of
federal supremacy is not lightly to be presumed.
"The principle thus applicable has been frequently stated. It is
that the Congress may circumscribe its regulation and occupy a
limited field, and that the intention to supersede the exercise by
the state of its authority as to matters not covered by the federal
legislation is not to be implied unless the Act of Congress, fairly
interpreted, is in conflict with the law of the State."
Atchison, T. &. S.F. R. Co. v. Railroad Commission,
283 U. S. 380,
283 U. S.
392-393.
See Savage v. Jones, 225 U.
S. 501,
225 U. S.
533.
"It should never be held that Congress intends to supersede, or
by its legislation suspend, the exercise of the police powers of
the states, even when it may do so, unless its purpose to effect
that result is clearly manifested."
Reid v. Colorado, 187 U. S. 137,
187 U. S.
148.
It is due consideration, but not controlling, that Texas has
legislated in this field. Our decision would be the same if the
Texas courts had pronounced this rule of evidence.
We hold that § 605 applies only to the exclusion in federal
court proceedings of evidence obtained and sought to be divulged in
violation thereof; it does not exclude such evidence in state court
proceedings. Since we do not believe that Congress intended to
impose a rule of evidence on the state courts, we do not decide
whether it has the power to do so.
Since the statute is not applicable to state proceedings, we do
not have to decide the questions of what amounts
Page 344 U. S. 204
to "interception," or whether if there was interception, the
sender had authorized it. These questions can arise only in a
federal court proceeding.
The judgment is
Affirmed.
MR. JUSTICE BLACK concurs in the result.
[
Footnote 1]
48 Stat. 1064, 47 U.S.C. § 151
et seq.
[
Footnote 2]
Tex.Laws 1925, c. 49, § 1.
[
Footnote 3]
Vernon's Tex.Stat. 1948, Code Crim.Proc., Art. 727a.
MR. JUSTICE FRANKFURTER, concurring in the result.
If the only question involved in this case were the
applicability to prosecutions in State courts, in situations like
the present, of § 605 of the Federal Communications Act, 47 U.S.C.
§ 605, as construed in the two
Nardone cases,
302 U. S. 302 U.S.
379;
308 U. S. 308 U.S.
338, I would join in the opinion of the Court. I agree with the
views on this subject expressed by MR. JUSTICE MINTON.
The matter is complicated, however, by a Texas statute, Art.
727a, Vernon's Code of Criminal Procedure (1948), which renders
inadmissible in criminal trials evidence obtained in violation of
any provision "of the Constitution of the United States." If this
limitation means, according to Texas law, that the State court is
to construe what is or is not a violation under the United States
Constitution, it does not raise a federal question. But if the
Texas legislation means that the Texas courts are bound by what
this Court deems a violation of the United States Constitution, the
problem is, or might be, different.
See State Tax Commission v.
Van Cott, 306 U. S. 511.
While, on the latter assumption, the circumstances attending the
evidence that was admitted here would, in my view, render it
inadmissible in a federal prosecution,
see my dissent in
On Lee v. United States, 343 U. S. 747,
343 U. S. 758,
the decision of this Court was to the contrary. Therefore the Texas
court was in duty bound to follow that decision and to reach the
result it reached, even if it felt constrained, as apparently it
did, to be governed
Page 344 U. S. 205
by the views of this Court as to what constitutes a violation of
the United States Constitution. I cannot say that the Texas court
should have followed my minority views, to which I adhere, on this
constitutional question, and disregarded the Court's authority.
MR. JUSTICE DOUGLAS, dissenting.
Since, in my view, (as indicated in my dissent in
On Lee v.
United States, 343 U. S. 747,
343 U. S.
762), this wiretapping was a search that violated the
Fourth Amendment, the evidence obtained by it should have been
excluded. The question whether the Fourth Amendment is applicable
to the states,
see Wolf v. Colorado, 338 U. S.
25, probably need not be reached, because a Texas
statute has excluded evidence obtained in violation of the Federal
Constitution. Therefore, I would reverse the judgment. I t is true
that the prior decisions of the Court point to affirmance. But
those decisions reflect constructions of the Constitution which I
think are erroneous. They impinge severely on the liberty of the
individual, and give the police the right to intrude into the
privacy of any life. The practices they sanction have today
acquired a momentum that is so ominous, I cannot remain silent and
bow to the precedents that sanction them.