The District Court, in an in camera
that intercepted conversations of applicants' counsel were not
relevant to issues in their federal criminal trial, and the Court
of Appeals, in affirming, held that the applicants had no standing
to raise the question of relevancy.
The issue of relevancy, the resolution of which
determined the issue of standing, required an adversary hearing,
and a stay of the criminal trial is appropriate pending the filing
of a petition for a writ of certiorari in this Court and the
Court's action thereon.
MR. JUSTICE DOUGLAS, Circuit Justice.
The question raised by this application for stay presents a
profoundly important constitutional question not squarely decided
by the Supreme Court but ruled upon by the District Court and by
the Court of Appeals in a way that is seemingly out of harmony with
the import of our decisions.
The electronic surveillance used by the Government was
represented to me on oral argument as being in the "foreign" field.
No warrant, as required by the Fourth Amendment and by our
decisions, was obtained, only the authorization by the Attorney
General. Such authorization was held insufficient in our recent
decision in United States v. United States District Court,
407 U. S. 297
(1972). It is argued that that case involved "domestic"
surveillance, but the Fourth Amendment and our prior decisions, to
date at least, draw no distinction between "foreign" and "domestic"
surveillance. Whether such a distinction will eventually be made is
for the Court, not for me, to make. Moreover, in light of the
casual way in which "foreign," as distinguished from
Page 409 U. S. 1220
surveillance was used on oral argument, it may be that we are
dealing only with a question of semantics. Defendants' telephonic
communications, it seems, were not tapped, nor were those of their
attorney or consultants. But a conversation or several
conversations of counsel for defendants were intercepted.
The District Court, in an in camera
that those conversations were not relevant to any issues in the
present trial. The Court of Appeals, as I read its opinion, ruled
that the defendants -- i.e.,
applicants who make this
application -- have no "standing" to raise the question. If,
however, the interceptions were "relevant" to the trial, it would
seem they would have "standing."
Therefore it would seem to follow from the reasoning of the
Court of Appeals that whether or not there was "standing" would
turn on the merits. The case, viewed in that posture, would seem to
require an adversary hearing on the issue of relevancy. We held, in
Alderman v. United States, 394 U.
, 394 U. S. 182
(1969), that the issue of relevancy should not be resolved in
but in an adversary proceeding. Alderman
would be greatly undercut if the issue of relevancy could be
resolved in camera,
and if the trial court ruled against
the defendants on the merits and then determined they had no
"standing" to complain.
I seriously doubt if the ruling of the Court of Appeals on
"standing" accurately states the law. In modern times, the
"standing" of persons or parties to raise issues has been greatly
liberalized. Our Court has not squarely ruled on the precise issue
here involved. But it did rule, in Flast v. Cohen,
392 U. S. 83
392 U. S. 103
(1968), that one who complains of a violation of a First Amendment
right has "standing." On oral argument, Flast
distinguished from the present case on the ground that, under the
Fourth Amendment, only those whose premises have been invaded
Page 409 U. S. 1221
or whose conversations have been intercepted have standing to
complain of unconstitutional searches and seizures. That
contention, however, does not dispose of this case.
The constitutional right earnestly pressed here is the right to
counsel guaranteed by the Sixth Amendment. That guarantee obviously
involves the right to keep the confidences of the client from the
ear of the Government, which these days seeks to learn more and
more of the affairs of men. The constitutional right of the client,
of course, extends only to his case, not to the other concerns of
his attorney. But unless he can be granted "standing" to determine
whether his confidences have been disclosed to the powerful
electronic ear of the Government, the constitutional fences
protective of privacy are broken down.
My authority is to grant or deny a stay, not to determine
whether the Court of Appeals is right or wrong on the merits. If
the application presents frivolous questions, it should be denied.
If it tenders a ruling out of harmony with our prior decisions, or
questions of transcending public importance, or issues which would
likely induce this Court to grant certiorari, the stay should be
I am exceedingly reluctant to grant a stay where the case in a
federal court is barely under way. But conscientious regard for
basic constitutional rights guaranteed by the Fourth and Sixth
Amendments makes it my duty to do so. I therefore order that the
trial be stayed for 30 days pending application to this Court for a
writ of certiorari, and thereafter stayed pending the determination
of the petition.
If the law under which we live and which controls every federal
trial in the land is the Constitution and the Bill of Rights, the
prosecution, as well as the accused, must submit to that law.