The cases are remanded to the District Courts for further
proceedings in conformity with
Alderman v. United States,
ante, p.
394 U. S. 165.
No. 84, certiorari granted as to petitioner Franzese only and
denied as to the others; 392 F.2d 954, vacated in part and
remanded. No. 317, certiorari granted as to petitioners Mirro and
McDonnell and denied as to the others; 396 F.2d 283, vacated in
part and remanded. In the following cases, certiorari granted and
the judgments below vacated and remanded: No. 28, 385 F.2d 988; No.
54, 390 F.2d 244; Nos. 106 and 168, 394 F.2d 304 and 327; No. 124,
393 F.2d 597; No. 129, 395 F.2d 47; No. 271, 397 F.2d 901; Nos. 474
and 715, 401 F.2d 664; No. 546, 398 F.2d 291; No. 668, 401 F.2d
259, and Nos. 895 and 911, 402 F.2d 380.
Page 394 U. S. 312
PER CURIAM.
The petitions for writs of certiorari are granted, except that,
in No. 84 the writ is granted as to petitioner Franzese only and
denied as to the other petitioners, and in No. 317 the petition is
granted as to petitioners Mirro and McDonnell only and denied as to
the other petitioners.** The judgments of the Courts of Appeals in
these cases are vacated, and the cases remanded to the respective
District Courts for further proceedings in conformity with
Alderman v. United States, Ivanov v. United States, and Butenko
v. United States, ante, p.
394 U. S. 165. It
is not evident from the records in some of these cases whether the
surveillances at issue were unlawful. It may be that the
overhearings in some instances were not achieved by trespass,
see Katz v. United States, 389 U.
S. 347 (1967);
Desist v. United States, ante,
p.
394 U. S. 244, and
Kaiser v. New York, ante, p.
394 U. S. 280, or
for some other reasons were not unlawful. As we held in
Alderman, Ivanov, and
Butenko, ante at
394 U. S. 170,
n. 3, "the District Court must develop the relevant facts and
decide if the Government's electronic surveillance
Page 394 U. S. 313
was unlawful." Of course, a finding by the District Court that
the surveillance was lawful would make disclosure and further
proceedings unnecessary. Similarly, it is not clear that each
petitioner has standing to assert the illegality of the
surveillance or of the introduction of its fruits. As in
Alderman, Ivanov, and
Butenko, these issues are
to be resolved by the District Courts in the first instance.
MR. JUSTICE BLACK dissents, except in Nos. 895 and 911, in the
consideration and disposition of which he took no part.
MR. JUSTICE WHITE took no part in the consideration or
disposition of Nos. 546, 895, and 911.
MR. JUSTICE MARSHALL tool no part in the consideration or
disposition of Nos. 28, 106, 129, 168, 271, 546, 895, and 911.
* Together with No. 54,
Scandifia v. United States; No.
84,
Franzese et al. v. United States; No. 106,
Evans
v. United States; No. 124,
Aiuppa v. United States;
No. 129,
Amabile v. United States; No. 168,
Battalia
v. United States; No. 271,
Clay, aka Ali v. United
States; No. 317,
Di Pietto et al. v. United States;
No. 474,
Natarelli v. United States; No. 546,
Hoffa et
al. v. United States; No. 668,
Stassi v. United
States; No. 715,
Randaccio v. United States; No. 95,
Hoffa et al. v. United States, and No. 911,
Dranow v.
United States, also on petitions for writs of certiorari. Nos.
54, 84, 474, and 715 are to the United States Court of Appeals for
the Second Circuit; Nos. 271 and 668 are to the Court of Appeals
for the Fifth Circuit; No. 546 is to the Court of Appeals for the
Sixth Circuit; Nos. 106, 129, 168, 31, 895, and 911 are to the
Court of Appeals for the Seventh Circuit, and No. 124 is to the
Court of Appeals for the Tenth Circuit.
** We read the papers filed by the United States in these two
cases as stating that the surveillances neither invaded the
premises of the other petitioners nor overheard their
conversations.
MR. JUSTICE STEWART, concurring.
A few words in amplification of this per curiam opinion may help
to avoid misunderstanding on the part of the litigants, and of the
District Courts to which these cases are remanded.
As we made explicit in
Alderman, Butenko, and
Ivanov, the requirement that certain products of
governmental electronic surveillance be turned over to defense
counsel was expressly limited to situations where the surveillance
had violated the Fourth Amendment. We did not decide in those
cases, and we do not decide in these, that any of the surveillances
did violate the Fourth Amendment. [
Footnote 1]
Page 394 U. S. 314
Instead, we have left that threshold question for the District
Courts to decide in all these cases.
Moreover, we did not in
Alderman, Butenko, or
Ivanov, and we do not today, specify the procedure that
the District Courts are to follow in making this preliminary
determination. We have nowhere indicated that this determination
cannot appropriately be made in
ex parte, in camera
proceedings.
"Nothing in
Alderman v. United States, Ivanov v. United
States, or
Butenko v. United States, ante, p.
394 U. S. 165, requires an
adversary proceeding and full disclosure for resolution of every
issue raised by an electronic surveillance."
Taglianetti v. United States, post, p.
394 U. S. 316.
Finally, the Court has not in any of these cases addressed
itself to the standards governing the constitutionality of
electronic surveillance relating to the gathering of foreign
intelligence information -- necessary for the conduct of
international affairs, and for the protection of national defense
secrets and installations from foreign espionage and sabotage. MR.
JUSTICE WHITE
Page 394 U. S. 315
has elsewhere made clear his view that such surveillance does
not violate the Fourth Amendment,
"if the President of the United States or his chief legal
officer, the Attorney General, has considered the requirements of
national security and authorized electronic surveillance as
reasonable. [
Footnote 2]"
While two members of the Court have indicated disagreement with
that view, [
Footnote 3] the
issue remains open. [
Footnote
4]
One might suppose that all of this should be entirely clear to
any careful reader of the Court's opinion in
Alderman,
Butenko, and
Ivanov. Perhaps so, and perhaps,
therefore, what I have said is quite unnecessary. But 10 years of
experience here have taught me that the most carefully written
opinions are not always carefully read -- even by those most
directly concerned.
[
Footnote 1]
In oral argument of the
Butenko and
Ivanov
cases, the Solicitor General, mystifyingly, sought to concede that
the surveillances there
were in fact, unconstitutional,
although he was repeatedly invited to argue that they were not. The
following colloquies during oral argument of the
Ivanov
case are illustrative:
"Q. Are you asking us to decide here or to leave open on remand
the question as to whether this violates, this bugging in this
particular case, violates the Fourth Amendment?"
"A. Our position would be the same had it or not. We are not
arguing that it did not violate the Fourth Amendment."
"Q. In other words, the premise in which you are proceeding here
is that you admit for the purposes of this case that this was
illegal bugging?"
"A. Yes, Mr. Justice."
"Q. And you are going to remain free to argue to the district
judge that there was no violation?"
"A. No, sir."
In deciding those cases, the Court declined to accept the
Solicitor General's proffered concession.
[
Footnote 2]
Katz v. United States, 389 U.
S. 347,
389 U. S. 364
(WHITE, J., concurring).
[
Footnote 3]
Id. at
389 U. S. 359
(DOUGLAS, J., concurring).
[
Footnote 4]
See id. at
389 U. S. 358,
n. 23.