409 U.S. 1090 (1972)

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U.S. Supreme Court

DYE v. NEW JERSEY. , 409 U.S. 1090 (1972)

409 U.S. 1090

Bentley Andrew DYE
No. 72-5535.

Supreme Court of the United States

December 18, 1972

On petition for writ of certiorari to the Supreme Court of New Jersey.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting. Petitioner was convicted of bookmaking in violation of state law. The evidence from which the conviction resulted arose primarily from a wiretap of a telephone on the premises where petitioner was employed. Petitioner challenges the admissibility of the wiretap product on the grounds that the judicial authorization was not in conformity with the state statute authorizing wiretapping (N.J.S.A. 2A:156A-1) and that the wiretap violated his Fourth Amendment rights. Pursuant to judicial authorization a wiretap was placed on the pay telephone located in the restaurant-bar-liquor store in which petitioner was employed. The affidavits supporting the request for authorization of the tap included the following information: That the police had been advised that the number of the telephone in question was listed many times on the toll receipt of another telephone which was located at a place where there was 'good reason to believe,' pursuant to a different investigation, that bookmaking operations were being conducted; that police stakeouts in the restaurant-bar-liquor store overheard both petitioner and an unidentified male make a call on the telephone in which betting information was passed and that petitioner was observed taking notes from the sports pages of the newspaper and having guarded conversations with customers; that when a reliable informer was requested to call the telephone number and place a bet, petitioner refused to take the bet, leading the informer to believe that petitioner would not deal with strangers. Mr. Justice BRENNAN took no part in the consideration or decision of this petition. From the above facts, the law division judge concluded that sufficient exigent circumstances existed for

Page 409 U.S. 1090 , 1091

concluding that traditional investigative techniques would be unproductive, and issued a warrant which authorized the placing of a wiretap on the telephone between the hours of 10 a. m. and 3 p. m., Monday through Saturday for a 30-day period, with directions that the interception begin as soon as practicable. The order also directed that the wiretap be conducted in such a way as to minimize or eliminate the interception of communications other than the type described. Those communications subject to seizure were described as 'communications of Bentley Dye [petitioner] relating to the offenses of Bookmaking and Conspiracy from telephone facility number 201-725-9743.'

Pursuant to the order, the police placed a wiretap on the telephone which was operative for 27 days. Over 105 hours of conversations were tapped. A master tape of those conversations allegedly involving bookmaking and the conspiracy was made and it ran about 2 1/2 hours. The recordings of nonrelated communications were sealed. (No reason is given as to why they were not destroyed.) On several days when petitioner was not at work the wiretap remained in effect, recording any calls made on the telephone.

In Berger v. New York, 388 U.S. 41, 63, this Court held that '[w]hile the requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement . . . it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded. Few threats to liberty exist which are greater that that posed by the use of eavesdropping devices.'

In Berger, the language of the New York statute authorizing the wiretap was held to be unconstitutionally broad, because authorization thereunder operated as the issuance of an illegal general warrant. The authoriza- [409 U.S. 1090 , 1092]

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