KAISER v. NEW YORK.
No. 62.
Argued January 16, 1969.
Decided March 24, 1969.
Henry J. Boitel, pro hac vice, and Peter L. F. Sabbatino argued the cause and filed briefs for petitioner.
William Cahn argued the cause for respondent. With him on the briefs was George Danzig Levine.
Mr. Justice Stewart
delivered the opinion of the Court.
The petitioner was convicted in a New York trial court in 1966 on three counts of conspiracy to extort, attempted extortion, and coercion. The case for the prosecution rested principally on the content of two telephone conversations between the petitioner and one of his co-conspirators. Tapes and transcripts of those conversations were introduced at the trial over the petitioner’s objection that they had been obtained by an unlawful wiretap. The conviction was affirmed by the Appellate Division of the Supreme Court of New York and by the New York Court of Appeals. We granted certiorari.
The telephone calls in question were made in 1964 by the petitioner from outside New York City to a co-conspirator at a bar in Manhattan. The conversations were recorded by means of a device attached to wires of the central terminal box in the basement of the building in which the bar was located. This wiretapping was conducted pursuant to a warrant issued under N. Y. Code Crim. Proc. § 813-a, the statute with which this Court subsequently dealt in Berger v. New York, 388 U. S. 41, in reversing a conviction under the Fourth and Fourteenth Amendments.
The petitioner contends that the Fourth and Fourteenth Amendments as construed in Berger, as well as § 605 of the Federal Communications Act, prohibited the introduction of the intercepted conversations and therefore require reversal of. his conviction. For the reasons stated below, we reject these contentions and affirm the judgment of the New York Court of Appeals.
Not until last Term in Katz v. United States, 389 U. S. 347, did this Court overrule its prior decisions that the Fourth Amendment encompassed seizures of speech only if the law enforcement officers committed a trespass or at least physically invaded a constitutionally protected area of the speaker. Olmstead v. United States, 277 U. S. 438, explicitly held that wiretapping conducted without such an intrusion was not an unlawful search or seizure. That rule was not modified by Berger v. New York. The Court's discussion of Olmstead in Berger, while recognizing that other cases had negated the statements in Olmstead that conversations are never protected by the Fourth Amendment, cast no doubt upon “[t]he basis of the [Olmstead] decision” — “that the Constitution did not forbid the obtaining of evidence by wiretapping unless it involved actual unlawful entry into the house.” Furthermore, the Court in Berger found the overbreadth of N. Y. Code Crim. Proc. § 813-a repugnant to the Fourth Amendment only to the limited extent that it permitted a “trespassory intrusion into a constitutionally protected area.”
Olmstead, then, stated the controlling interpretation of the Fourth Amendment with respect to wiretapping until it was overruled by Katz. And in Desist v. United States, ante, p. 244, we have held today that Katz is to be applied wholly prospectively. Since the wiretapping in this case occurred before Katz was decided and was accomplished without any intrusion into a constitutionally protected area of the petitioner, its fruits were not inadmissible under the exclusionary rule of the Fourth and Fourteenth Amendments. Mapp v. Ohio, 367 U. S. 643.
Nor did § 605 of the Federal Communications Act require exclusion of the intercepted conversations. Until our decision last Term in Lee v. Florida, 392 U. S. 378, state trial courts were free to accept evidence violative of | 605. Lee extended the Nardone exclusionary rule of § 605 to the States, but that decision has also been held to apply only prospectively. Fuller v. Alaska, 393 U. S. 80. The wiretapping evidence was introduced at the petitioner’s trial in 1966, long before the date of our decision in Lee.
Affirmed.
Mr. Justice Black concurs in the result for the reasons stated in his dissenting opinions in Berger v. New York, 388 U. S. 41, 70, and Katz v. United States, 389 U. S. 347, 364.
28 App. Div. 2d 647, 282 N. Y. S. 2d 207.
21 N. Y. 2d 86, 233 N. E. 2d 818.
390 U. S. 1023.
Section 605, 48 Stat. 1103, 47 U. S. C. § 605, reads in pertinent part as follows:
“ [N] o person not being authorized by the sender shall intercept any communication and divulge . . . the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person . . . .”
The petitioner also contends that the prosecutor’s references to the recorded conversations as “confessions” were so inaccurate and misleading as to deny him due process. We do not believe that that characterization of the evidence raises any substantial federal question. The jury was aware that the prosecutor was adverting to the overheard conversations and knew the circumstances under which the incriminating statements had been made. In contrast to the situation in Miller v. Pate, 386 U. S. 1, there was here no misrepresentation about evidence which the jurors were not themselves in a position to evaluate.
See Desist v. United States, ante, at 247-248.
388 U. S., at 51.
Id., at 44. See also id., at 43, 57, 60, 64, 69.
Schwartz v. Texas, 344 U. S. 199.
Nardone v. United States, 302 U. S. 379, holding that evidence seized in violation of § 605 by federal officers was not admissible in federal criminal trials. See also Benanti v. United States, 355 U. S. 96, holding that such evidence seized by state officers must also be excluded from federal trials.
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