401 U.S. 996 (1971)

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U.S. Supreme Court

COOK v. UNITED STATES , 401 U.S. 996 (1971)

401 U.S. 996

Earle T. COOK
No. 1166.

Supreme Court of the United States

March 29, 1971

On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit. The petition for writ of certiorari is denied.

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting. I would grant the petition on the issue of electronic surveillance. In this criminal prosecution counsel for the defense asked if the Government had obtained any evidence by means of listening devices or electronic eavesdropping. [Footnote 1] The prosecutor would say only that 'no illegal eavesdropping devices were used.'2 He would not state whether any eavesdropping equipment had been used. [Footnote 3] The trial judge refused to order the disclosure. [Footnote 4] On appeal, petitioner contended that the Government must disclose whether there had been electronic surveillance, regardless of its views of the legality. The legality

Page 401 U.S. 996 , 997

of such surveillance was for the court to determine, he argued, and he asked for a hearing to determine if such devices were used. [Footnote 5] The Government asserted on appeal that 'there was no electronic surveillance involved in this case.' This statement was supported by a letter from the Department of Justice:

    'Please be informed we have contacted the appropriate investigative agencies and have been informed Cook was not the subject of a direct microphone surveillance nor were any of his conversations monitored. Further we are informed, no electronic surveillance was maintained on premises which were known to have been owned, leased, or licensed by the above individual.'

Petitioner contended that this letter was far from clear as it did not state which agencies were contacted and only stated that he was not the subject of 'direct' microphone surveillance, suggesting 'indirect' surveillance. The Court of Appeals agreed that the statement of the prosecutor was 'not unequivocal' and that the disclosure should have been made to the trial judge. Yet it affirmed the conviction without further inquiry.

Petitioner contends that he is entitled to a judicial determination of the existence and legality of electronic eavesdropping. He argues that the United States has never stated unequivocally that no electronic eavesdropping occurred. The Solicitor General relies on the letter which I have quoted. Moreover, he indicates that the [401 U.S. 996 , 998]

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