A four-party telephone line was installed in petitioner Lee's
house, and, shortly thereafter, by direction of the Orlando,
Florida, police, a telephone in a neighboring house was connected
to the same party line. The police attached equipment which
permitted them to hear and record all conversations on the party
line without lifting the telephone receiver. Recordings of
conversations were introduced, over objection, at petitioners'
trial for violation of state lottery laws. Petitioners were
convicted, and the state appellate court affirmed, saying
"that there were no state or federal statutes applicable in
Florida which would make wiretapping illegal and inadmissible in
evidence. . . ."
Held:
1. The conduct of the Orlando police clearly amounted to
interception of petitioners' communications within the meaning of
§ 605 of the Federal Communications Act of 1934, which
prohibits the interception and divulgence (conceded here) of any
communication without the sender's authorization. Pp.
392 U. S.
380-382.
2. The recordings of the illegally intercepted conversations
were not admissible in evidence in the Florida courts in view of
the express federal prohibition against divulgence of recordings so
procured.
Schwartz v. Texas, 344 U.
S. 199, overruled. Pp.
392 U. S.
382-387.
191 So. 2d 84, reversed.
MR. JUSTICE STEWART delivered the opinion of the Court.
The three petitioners were convicted in a Florida trial court
for violating the state lottery laws. Their convictions
Page 392 U. S. 379
were affirmed by a Florida district court of appeal, [
Footnote 1] and the Supreme Court of
Florida denied further review. We granted certiorari to consider
the application of § 605 of the Federal Communications Act of
1934, 48 Stat. 1103, 47 U.S.C. § 60a, to the circumstances of
this case. [
Footnote 2] That
statute provides:
"[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. . . ."
In the summer of 1963, petitioner Lee ordered the installation
of a private telephone in the house where he lived near Orlando,
Florida. The local telephone company informed him that no private
lines were available, and he was given a telephone on a four-party
line instead. A week later, at the direction of the Orlando police
department, the company connected a telephone in a neighboring
house to the same party line. [
Footnote 3] The police attached to this telephone an
automatic actuator, a tape recorder, and a set of earphones. The
equipment was connected directly to the wall outlet in such a way
that the police could hear and record all conversations on the
party line without the necessity of lifting the receiver on their
telephone. This arrangement not only afforded the police continuous
access to all of Lee's outgoing and incoming calls, but also
eliminated the telltale "click" that would otherwise have warned
conversing parties that someone else on the line had picked up a
receiver.
Page 392 U. S. 380
Further, the arrangement insured that noises in the house
occupied by the police would not be heard by anyone else on the
line. For more than a week, the police used this equipment to
overhear and record telephone calls to and from Lee's residence,
including calls made to Lee by the other two petitioners from
private, as well as public, telephones.
At the petitioners' trial, several of these recordings were
introduced in evidence by the prosecution over objection by defense
counsel. In affirming the convictions, the state appellate court
said that "there were no state or federal statutes applicable in
Florida which would make wiretapping illegal and inadmissible in
evidence. . . ." [
Footnote
4]
We disagree. There clearly is a federal statute, applicable in
Florida and every other State, that made illegal the conduct of the
Orlando authorities in this case. And that statute, we hold today,
also made the recordings of the petitioners' telephone
conversations inadmissible as evidence in the Florida court.
I
Section 605 of the Federal Communications Act speaks not in
terms of tapping a wire, but in terms of intercepting and divulging
a communication. The State concedes that the police "divulged" the
petitioners' conversations within the meaning of the statute. But,
it argues, the police cannot be deemed to have "intercepted"
the
Page 392 U. S. 381
telephone conversations, because people who use party lines
should realize that their conversations might be overheard.
This is not a case, however, where the police merely picked up
the receiver on an ordinary party line, and we need not decide
whether § 605 would be applicable in those circumstances.
[
Footnote 5] For here, the
police did much more. They deliberately arranged to have a
telephone connected to Lee's line without his knowledge, and they
altered that connection in such a way as to permit continuous
surreptitious surveillance and recording of all conversations on
the line. What was done here was a far cry from the police activity
in
Rathbun v. United States, 355 U.
S. 107, a case heavily relied upon by the respondent.
There, we found no interception where "a communication [is]
overheard on a regularly used telephone extension with the consent
of one party to the conversation,"
ibid., and where the
"extension had not been installed there just for this purpose, but
was a regular connection, previously placed and normally used."
Id. at
355 U. S. 108.
We viewed that situation as though one of the parties to the
telephone conversation had simply "held out his handset so that
another could hear out of it."
Id. at
355 U. S.
110-111. In the present case, by contrast, there was
neither "the consent of one party" nor a "regularly used" telephone
"not . . . installed . . . just for [the] purpose" of surveillance.
The conduct of the Orlando
Page 392 U. S. 382
police, deliberately planned and carried out, clearly amounted
to interception of the petitioners' communications within the
meaning of § 605 of the Federal Communications Act. [
Footnote 6]
II
The remaining question is whether the recordings that the police
obtained by intercepting the petitioners' telephone conversations
were admissible in evidence in the Florida trial court,
notwithstanding the express prohibition of federal law against
divulgence of recordings so procured.
Section 605 was enacted as part of the Federal Communications
Act of 1934, 48 Stat. 1103, six years after the Court had said, in
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 465,
that
"Congress may, of course, [legislate to] protect the secrecy of
telephone messages by making them, when intercepted, inadmissible
in evidence. . . ."
In
Nardone v. United States, 302 U.
S. 379, the Court was first called upon to decide
whether § 605 had indeed served to render evidence of
intercepted communications inadmissible in a federal trial. In that
case, the Government urged that
"a construction be given the section which would exclude federal
agents, since it is improbable Congress intended to hamper and
impede the activities of the government in the detection and
punishment of crime."
302 U.S. at
302 U. S. 383.
In reversing the judgment of conviction, the Court's answer to that
argument was unequivocal:
"[T]he plain words of § 605 forbid anyone, unless
authorized by the sender, to intercept a telephone message, and
direct in equally clear language that
'no person' shall
divulge or publish the message or its
Page 392 U. S. 383
substance to
'any person.' To recite the contents of
the message in testimony before a court is to divulge the message.
The conclusion that the act forbids such testimony seems to us
unshaken by the government's arguments."
"
* * * *"
"Congress may have thought it less important that some offenders
should go unwhipped of justice than that officers should resort to
methods deemed inconsistent with ethical standards and destructive
of personal liberty. The same considerations may well have moved
the Congress to adopt § 605 as evoked the guaranty against
practices and procedures violative of privacy, embodied in the
Fourth and Fifth Amendments of the Constitution."
302 U.S. at
302 U. S. 382,
302 U. S.
383.
Fifteen years later, in
Schwartz v. Texas, 344 U.
S. 199, the Court considered the question whether,
despite § 605, telephone communications intercepted by state
officers could lawfully be received in evidence in state criminal
trials. That case was decided in the shadow of
Wolf v.
Colorado, 338 U. S. 25,
which, shortly before, had held 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."
338 U.S. at
338 U. S. 33.
The Court in
Schwartz recognized that the problem before
it was "somewhat different" from the one that had been presented in
Wolf, "because the introduction of the intercepted
communications would itself be a violation" of federal law. 344
U.S. at
344 U. S. 201.
But the Court nonetheless concluded that state trial courts were
not required to reject evidence violative of § 605. For if, as
Wolf had held, state courts were free to accept evidence
obtained in violation of the Federal Constitution, the
Page 392 U. S. 384
Court reasoned that they could not be required to reject
evidence obtained and divulged in violation of a federal statute.
That was the thrust of the
Schwartz opinion:
"Although the intercepted calls would be inadmissible in a
federal court, it does not follow that such evidence is
inadmissible in a state court. Indeed, evidence obtained by a state
officer by means which would constitute an unlawful search and
seizure under the Fourth Amendment to the Federal Constitution is
nonetheless admissible in a state court,
Wolf v. Colorado,
338 U. S.
25, while such evidence, if obtained by a federal
officer, would be clearly inadmissible in a federal court.
Weeks v. United States, 232 U. S. 383."
Ibid.
The fact that a state official would be violating the express
terms of the federal statute by the very act of divulging the
intercepted communications as evidence for the prosecution at the
trial, the Court in
Schwartz said, was "simply an
additional factor for a state to consider in formulating a rule of
evidence for use in its own courts."
Ibid. But in
Benanti v. United States, 355 U. S.
96, five years later, the Court returned to the teaching
of
Nardone in giving emphatic recognition to the language
of the statute that itself makes illegal the divulgence of
intercepted communications. In
Benanti, the Court held
inadmissible in a federal trial communications that had been
intercepted by state officers. [
Footnote 7] "Section 605," the Court said, "contains an
express, absolute prohibition against the divulgence of intercepted
communications." 355 U.S. at
355 U. S.
102.
Page 392 U. S. 385
After the
Benanti decision, therefore, the only
remaining support for
Schwartz v. Texas, supra, was the
holding in
Wolf v. Colorado, supra, that state courts,
unlike federal courts, were free to decide for themselves whether
to condone violations of federal law by accepting the products of
such violations as evidence. That doctrinal underpinning of the
Schwartz decision was, of course, completely removed by
Mapp v. Ohio, 367 U. S. 643,
which overruled
Wolf and squarely held that evidence
obtained by state officers in an unreasonable search is
inadmissible in a state criminal trial.
In view of the
Nardone and
Benanti decisions,
[
Footnote 8] the doctrine of
Schwartz v. Texas cannot survive the demise of
Wolf v.
Colorado, supra. In the
Mapp case, the Court, in
overruling
Wolf, imposed a judicially devised exclusionary
rule in order to insure that a State could not adopt rules of
evidence calculated to permit the invasion of rights protected by
federal organic law. In the present case, the federal law itself
explicitly protects intercepted communications from divulgence, in
a court or any other place.
But the decision we reach today is not based upon language and
doctrinal symmetry alone. It is buttressed as well by the
"imperative of judicial integrity."
Elkins v. United
States, 364 U. S. 206,
364 U. S. 222.
[
Footnote 9] Under our
Constitution
Page 392 U. S. 386
no court, state or federal, may serve as an accomplice in the
willful transgression of "the Laws of the United States," laws by
which "the Judges in every State [are] bound. . . ." [
Footnote 10]
Finally, our decision today is counseled by experience. The hope
was expressed in
Schwartz v. Texas that "[e]nforcement of
the statutory prohibition in § 605 can be achieved under the
penal provisions" of the Communications Act. 344 U.S. at
344 U. S. 201.
[
Footnote 11] That has
proved to be a vain hope. Research has failed to uncover a single
reported prosecution of a law enforcement officer for violation of
§ 605 since the statute was enacted. [
Footnote 12] We conclude, as we concluded in
Elkins and in
Mapp, that
Page 392 U. S. 387
nothing short of mandatory exclusion of the illegal evidence
will compel respect for the federal law "in the only effectively
available way -- by removing the incentive to disregard it."
Elkins v. United States, 364 U.S. at
364 U. S.
217.
Reversed.
[
Footnote 1]
Lee v. State, 191 So. 2d 84.
[
Footnote 2]
389 U.S. 1033. Issues under the Fourth and Fourteenth Amendments
were also presented in the petition for certiorari. We do not reach
those issues.
[
Footnote 3]
The record does not show how or why this house was made
available to the Orlando police.
[
Footnote 4]
191 So. 2d at 85. The court went on to say that "wiretapping is
illegal in Florida" by reason of the Florida Constitution. However,
the court found that what the police did, in this case, did not
amount to "wiretapping" within the scope of the state
constitutional prohibition. The court based its conclusions upon
several previous Florida cases:
Perez v.
State, 81 So. 2d
201;
Williams v. State, 109 So. 2d 379;
Griffith
v. State, 111 So. 2d 282;
Barber v. State, 172 So. 2d
857.
[
Footnote 5]
A party-line user's privacy is obviously vulnerable, but it does
not necessarily follow that his telephone conversations are
completely unprotected by § 605. In many areas of the country
private telephone lines are not available; in other areas, they are
available only at higher rates than party lines. There is nothing
in the language or history of § 605 to indicate that Congress
meant to afford any less protection to those who, by virtue of
geography or financial hardship, must use party-line
telephones.
[
Footnote 6]
Section 605 prohibits interception and divulgence of intrastate,
as well as interstate, communications.
Weiss v. United
States, 308 U. S. 321.
[
Footnote 7]
It was not until two Terms later, in
Elkins v. United
States, 364 U. S. 206,
that the Court repudiated the "silver platter doctrine," under
which evidence obtained by state officers in violation of the
Fourth and Fourteenth Amendments could be received as evidence in
federal courts.
[
Footnote 8]
See also the second
Nardone case,
Nardone
v. United States, 308 U. S. 338.
[
Footnote 9]
"[I]t cannot be lawful to authorize what is an illegal act. . .
. [I]f the police officer violates the Federal statute by tapping
wires notwithstanding a warrant issued out of this court pursuant
to New York law -- if that act be illegal -- those who set the act
in motion have condoned, if not instigated, illegality. . . . [T]he
warrant itself partakes of the breach, willful or inadvertent, of
the Federal law. Such breach may not find sanction in the orders of
courts charged with the support of the law of the land and with
enforcing that law!"
In re Telephone Communications, 9 Misc.2d 121, 126>
170 N.Y.S.2d 84, 89 (N.Y.Sup.Ct.).
See also Application for
Interception of Telephone Communications, 23 Misc.2d 543, 198
N.Y.S.2d 572 (N.Y.Ct.Gen.Sess.).
Compare Judge Waterman's concurring opinion in
Pugach v. Dollinger, 277 F.2d 739 (denying injunction
against state officer for violating § 605),
aff'd per
curiam, 365 U. S. 458:
"It is therefore presumptuous to assume that any New York State
trial judge will acquiesce to the commission of a crime against the
United States in his presence in his courtroom by a witness
testifying under oath."
277 F.2d at 745.
[
Footnote 10]
"[T]he Laws of the United States . . . shall be the supreme Law
of the Land, and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding."
Art. VI, U.S.Const.
[
Footnote 11]
Compare Wolf v. Colorado, 338 U. S.
25, at
338 U. S.
30-31.
[
Footnote 12]
In
Pugach v. Klein, 193 F.
Supp. 630, a defendant in a state criminal case attempted
unsuccessfully to initiate a criminal prosecution against state
officers for violations of § 605.
See also Simons v.
O'Connor, 187 F.
Supp. 702 (denying damages in action against state officer for
violation of § 605).
There seem to be only three reported prosecutions of private
individuals for violations of § 605.
United States v.
Gruber, 123 F.2d 307;
United States v. Gris, 247 F.2d
860;
Elkins v. United States, 364 U.
S. 206.
MR. JUSTICE BLACK, dissenting.
In 1937,
Nardone v. United States, 302 U.
S. 379, held that 47 U.S.C. § 605 forbids the
introduction of intercepted and divulged telephone conversations in
federal courts. In
Schwartz v. Texas, 344 U.
S. 199 (1952), this Court held, however, that the
section does not forbid the use of such evidence in state criminal
trials, saying: "[W]e do not believe that Congress intended to
impose a rule of evidence on the state courts." 344 U.S. at
344 U. S. 203.
I thought the holding in
Schwartz was correct then, and
still think so. The Court holds, however, that § 605 now
compels state courts to exclude such intercepted telephone messages
from state trials. The effect of this holding is to overrule
Schwartz v. Texas. The Court's holding is made despite the
fact that Congress itself has not changed the section. Nor does
Mapp v. Ohio, 367 U. S. 643
(1961), undermine
Schwartz, as the Court intimates, for,
in
Schwartz, we dealt, as we do here, with conduct that
violates only a federal statute, and so deserves only the sanctions
contemplated by that statute. The Communications Act explicitly
provides for penal sanctions, 47 U.S.C. § 501, and some civil
remedies might be implied as a matter of federal law,
cf. J. I.
Case Co. v. Borak, 377 U. S. 426
(1964). But the creation by statute of a federal substantive right
does not mean that the States are required by the Supremacy Clause
to give every procedural trial remedy afforded by federal courts,
or that failure to afford such remedies renders the State "an
accomplice in the willful transgression of
the Laws of the
United States.'" Ante at 392 U. S.
386.
Page 392 U. S. 388
I think it would be more appropriate for the Court to leave this
job of rewriting § 605 to the Congress. Waiting for Congress
to rewrite its law, however, is too slow for the Court in this day
of the rapid creation of new judicial rules, many of which
inevitably tend to make conviction of criminals more difficult. I
cannot agree that there is the slightest justification for
overruling
Schwartz, and would affirm these Florida
gambling convictions.
MR. JUSTICE HARLAN, whom MR. JUSTICE WHITE joins,
dissenting.
Congress has ample power to proscribe any particular use of
intercepted telephone conversations. The question here is simply
whether § 605 of the Communications Act proscribes basing
state criminal convictions on such interceptions. This statutory
question does not involve any constitutional exclusionary rule,
cf. Mapp v. Ohio, 367 U. S. 643, or
the supervisory power of this Court over the lower federal courts,
cf. Weeks v. United States, 232 U.
S. 383.
More than 15 years ago, in
Schwartz v. Texas,
344 U. S. 199,
this Court decided that § 605 did not render state convictions
based on such interceptions invalid. Although arguments can be made
that this decision was incorrect, the matter is hardly without
difficulty. It is not at all obvious that a statute which, by its
terms, prohibits only interception and divulgence of conversations,
meant also to prohibit state court reliance on the perfectly
probative evidence gained thereby.
*
Page 392 U. S. 389
It disserves the proper relation between this Court and Congress
to change the longstanding interpretation of a federal statute in
the absence of much more convincing evidence than is here adduced
that the Court originally mistook what Congress intended. The
importance of the principle of
stare decisis, of course,
varies with the nature of the question. It is at its highest in a
case such as the present: Congress has considered the wiretapping
problem many times, each time against what it naturally assumed to
be a stable background of statute law. To vary that background with
the inclinations of members of this Court is to frustrate orderly
congressional consideration of statutory problems. I would
therefore adhere to
Schwartz.
Since the Court does not reach petitioners' further contention
that the interception violated their constitutional rights, I am
content to dissent from the Court's determination of the statutory
question, and not to express views that would, at this stage, be
academic.
*
Nardone v. United States, 302 U.
S. 379, established that divulgence of intercepted
communications in court was a violation of § 605. The Court
went on to hold that a federal conviction resulting from such a
violation was itself improper. The Court did not, however, make it
clear whether the Act required that result by its own force or the
Court was simply imposing that result by virtue of its supervisory
power.