Berger v. New York/Concurrence Stewart

by Potter Stewart

United States Supreme Court

388 U.S. 41

Berger  v.  New York

 Argued: April 13, 1967. --- Decided: June 12, 1967

Mr. Justice STEWART, concurring in the result.

I fully agree with Mr. Justice BLACK, Mr. Justice HARLAN, and Mr. Justice WHITE that this New York law is entirely constitutional. In short, I think that "electronic eavesdropping, as such or as it is permitted by this statute, is not an unreasonable search and seizure." ^[1] The statute contains many provisions more stringent than the Fourth Amendment generally requires, as Mr. Justice BLACK has so forcefully pointed out. And the petitioner himself has told us that the law's "reasonable grounds" requirement "is undisputedly equivalant to the probable cause requirement of the Fourth Amendment." This is confirmed by decisions of the New York courts. People v. Cohen, 42 Misc.2d 403, 248 N.Y.S.2d 339; People v. Beshany, 43 Misc.2d 521, 252 N.Y.S.2d 110; People v. Grossman, 45 Misc.2d 557, 257 N.Y.S.2d 266. Of course, a state court's construction of a state statute is binding upon us.

In order to hold this statute unconstitutional, therefore, we would have to either rewrite the statute or rewrite the Constitution. I can only conclude that the Court today seems to have rewritten both.

The issue before us, as Mr. Justice WHITE says, is "whether this search complied with Fourth Amendment standards." For me that issue is an extremely close one in the circumstances of this case. It certainly cannot be resolved by incantation of ritual phrases like "general warrant." Its resolution involves "the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not?" ^[2]

I would hold that the affidavits on which the judicial order issued in this case did not constitute a showing of probable cause adequate to justify the authorizing order. The need for particularity and evidence of reliability in the showing required when judicial authorization is sought for the kind of electronic eavesdropping involved in this case is especially great. The standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion. By its very nature electronic eavesdropping for a 60-day period, even of a specified office, involves a broad invasion of a constitutionally protected area. Only the most precise and rigorous standard of probable cause should justify an intrusion of this sort. I think the affidavits presented to the judge who authorized the electronic surveillance of the Steinman office failed to meet such a standard.

So far as the record shows, the only basis for the Steinman order consst ed of two affidavits. One of them contained factual allegations supported only by bare, unexplained references to "evidence" in the district attorney's office and "evidence" obtained by the Neyer eavesdrop. No underlying facts were presented on the basis of which the judge could evaluate these general allegations. The second affidavit was no more than a statement of another assistant district attorney that he had read his associate's affidavit and was satisfied on that basis alone that proper grounds were presented for the issuance of an authorizing order.

This might be enough to satisfy the standards of the Fourth Amendment for a conventional search or arrest. Cf. Aguilar v. State of Texas, 378 U.S. 108, 116, 84 S.Ct. 1509, 1515, 12 L.Ed.2d 723 (dissenting opinion). But I think it was constitutionally insufficient to constitute probable cause to justify an intrusion of the scope and duration that was permitted in this case.

Accordingly, I would reverse the judgment.

Mr. Justice BLACK, dissenting.

Notes

1. Dissenting opinion of Mr. Justice HARLAN, post, p. 89, at 94.
2. See dissenting opinion of Mr. Justice BLACK, post, p. 70, at 83.