Syllabus. 347 U.S. IRVINE v. CALIFORNIA. CERTIORARI ΤΟ THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. No. 12. Argued November 30, 1953. Decided February 8, 1954. After admission of evidence obtained by illegal entries into his home, petitioner was convicted in a California state court on charges of horse-race bookmaking and related offenses under the state antigambling laws. Prior to petitioner's arrest, and while he and his wife were absent from their home, a police officer arranged with a locksmith to go there and make a key to the door. On three different occasions, without a search warrant or other process, officers and a technician entered the home by means of this key and installed a concealed microphone in the hall and later moved it to petitioner's bedroom and thence to a closet. At petitioner's trial, officers were allowed to testify, over objection, to incriminating conversations heard through the listening apparatus. Also admitted in evidence were a federal wagering tax stamp, which petitioner had on his person when arrested, and documents from the office of the United States Collector of Internal Revenue showing his application for the stamp and his return to the Collector. Held: The conviction is sustained as not violative of the Fourteenth Amendment or of federal law. Pp. 129-139. 113 Cal. App. 2d 460, 248 P. 2d 502, affirmed. For opinion of MR. JUSTICE JACKSON, in which THE CHIEF JusTICE, MR. JUSTICE REED and MR. JUSTICE MINTON join, see p. 129. For opinion of MR. JUSTICE CLARK, concurring in the judgment, see p. 138. For dissenting opinion of MR. JUSTICE BLACK, in which MR. JusTICE DOUGLAS joins, see p. 139. For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BURTON, see p. 142. For dissenting opinion of MR. JUSTICE DOUGLAS, see p. 149. Petitioner's conviction in a California state court of offenses under the state antigambling laws was affirmed on appeal. 113 Cal. App. 2d 460, 248 P. 2d 502. The 128 Opinion of JACKSON, J. State Supreme Court denied a petition for hearing. This Court granted certiorari. 345 U. S. 903. Affirmed, p. 138. Morris Lavine argued the cause and filed a brief for petitioner. Elizabeth Miller, Deputy Attorney General of California, and Clarence A. Linn, Assistant Attorney General, argued the cause for respondent. With them on the brief were Edmund G. Brown, Attorney General, and William V. O'Connor, Chief Deputy Attorney General. MR. JUSTICE JACKSON announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE REED and MR. JUSTICE MINTON join. This case involves constitutional questions growing out of methods employed to convict petitioner on charges of horse-race bookmaking and related offenses1 against the antigambling laws of California. Petitioner exhausted all avenues to relief under state procedures and then sought review here of duly raised federal issues. We granted certiorari on a petition which tendered four questions. However, petitioner's counsel has now presented two additional questions, one concerning the application of an immunity statute of California and another attacking certain instructions given to the jury by the trial court. Neither of these was mentioned in the petition. We disapprove the practice of smuggling additional questions into a case after we grant certiorari. The issues here are fixed by the petition unless we limit. the grant, as frequently we do to avoid settled, frivolous 1 Keeping premises with paraphernalia for the purpose of recording and registering bets on horse racing, receiving money and the equivalent thereof which had been or was to be wagered on horse races, and recording and registering bets on horse races. 2 Deering's Cal. Penal Code, 1949, §§ 337a (1), (2), (3), and (4). 3 345 U.S. 903. Opinion of JACKSON, J. 347 U.S. or state law questions. We do not take up the questions numbered 3 and 6 of petitioner's brief because they are improperly presented. Upon his arrest, petitioner had on his person a federal wagering tax stamp bearing his name, home address and the date, November 5, 1951. Against objection, it and other documentary evidence from the office of the United States Collector of Internal Revenue was received to show petitioner's application for the wagering tax stamp and his return to the Collector under the federal law. These documents were made pursuant to the Federal Act imposing wagering taxes, 65 Stat. 529, 26 U. S. C. (Supp. V) § 3285 et seq., held constitutional by this Court in United States v. Kahriger, 345 U. S. 22. The claim is made that it was error as a matter of federal law to admit this evidence and also that payment of the federal tax resulted in a federal license to conduct the wagering business. This statute does not make such records or stamps confidential or privileged but, on the contrary, expressly requires the name and place of business of each such taxpayer to be made public. 53 Stat. 395, 26 U. S. C. § 3275. Petitioner's contentions are without substance or merit in view of the express provision of the statute that payment of the tax does not exempt any person from penalty or punishment by state law and does not authorize commencement or continuance of such business. 53 Stat. 395, 26 U. S. C. § 3276; 65 Stat. 531, 26 U. S. C. (Supp. V) § 3292.1 But the questions raised by the officers' conduct while investigating this case are serious. The police strongly suspected petitioner of illegal bookmaking but were without proof of it. On December 1, 1951, while Irvine and his wife were absent from their home, an officer ar * Petitioner's question number 2, which challenges the State's use of "compelled evidence" obtained under the federal wagering statute, is answered in United States v. Kahriger, supra, at 32. 128 Opinion of JACKSON, J. ranged to have a locksmith go there and make a door key. Two days later, again in the absence of occupants, officers and a technician made entry into the home by the use of this key and installed a concealed microphone in the hall. A hole was bored in the roof of the house and wires were strung to transmit to a neighboring garage whatever sounds the microphone might pick up. Officers were posted in the garage to listen. On December 8, police again made surreptitious entry and moved the microphone, this time hiding it in the bedroom. Twenty days later, they again entered and placed the microphone in a closet, where the device remained until its purpose of enabling the officers to overhear incriminating statements was accomplished. We should note that this is not a conventional instance of "wire tapping." Here the apparatus of the officers was not in any way connected with the telephone facilities, there was no interference with the communications system, there was no interception of any message. All that was heard through the microphone was what an eavesdropper, hidden in the hall, the bedroom, or the closet, might have heard. We do not suppose it is illegal to testify to what another person is heard to say merely because he is saying it into a telephone. We cannot sustain the contention that the conduct or reception of the evidence violated the Federal Communications Act. 48 Stat. 1103, 47 U. S. C. § 605. Cf. Nardone v. United States, 308 U. S. 338; Goldman v. United States, 316 U. S. 129; Schwartz v. Texas, 344 U. S. 199. At the trial, officers were allowed to testify to conversations heard through their listening installations. The snatches of conversation which the prosecution thought useful were received in evidence. They were in the lingo of the race track and need not be recited, but the jury might well have regarded them as incriminating. The testimony was received under objection, properly 347 U.S. Opinion of Jackson, J. raising the question that it was constitutionally inadmissible since obtained by methods which violate the Fourteenth Amendment. Each of these repeated entries of petitioner's home without a search warrant or other process was a trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished. Science has perfected amplifying and recording devices to become frightening instruments of surveillance and invasion of privacy, whether by the policeman, the blackmailer, or the busybody. That officers of the law would break and enter a home, secrete such a device, even in a bedroom, and listen to the conversation of the occupants for over a month would be almost incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment as a restriction on the Federal Government that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The decision in Wolf v. Colorado, 338 U. S. 25, 27, for the first time established that "[t]he security of one's privacy against arbitrary intrusion by the police" is embodied in the concept of due process found in the Fourteenth Amendment. But Wolf, for reasons set forth therein, declined to make the subsidiary procedural and evidentiary doctrines developed by the federal courts limitations on the states. On the contrary, it declared, "We hold, therefore, that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure." |