Berger v. New York

Not to be confused with New York v. Burger or Berger v. United States.

Berger v. New York, 388 U.S. 41 (1967), was a United States Supreme Court decision invalidating a New York law under the Fourth Amendment, because the statute authorized electronic eavesdropping without required procedural safeguards.

Berger v. New York
Supreme Court of the United States
Argued April 13, 1967 Decided June 12, 1967
Full case name	Ralph Berger v. State of New York
Citations	388 U.S. 41 (more) 87 S. Ct. 1873; 18 L. Ed. 2d 1040
Case history
Prior	Certiorari to the Court of Appeals of New York
Holding
The Court facially invalidated a New York statute (N.Y. Code of Crim. Proc. § 813-a) which allowed for electronic eavesdropping without the procedural safeguards required by the Fourth Amendment.
Court membership
Chief Justice Earl Warren Associate Justices Hugo Black · William O. Douglas Tom C. Clark · John M. Harlan II William J. Brennan Jr. · Potter Stewart Byron White · Abe Fortas
Case opinions
Majority	Clark, joined by Warren, Douglas, Brennan, Fortas
Concurrence	Douglas
Concurrence	Stewart
Dissent	Black
Dissent	Harlan
Dissent	White
Laws applied
U.S. Const. amend. IV

Background

Under New York Code of Criminal Procedure § 813-a, police obtained an ex parte order to bug the office of attorney Ralph Berger. Based on evidence obtained by the surveillance, Berger was convicted of conspiracy to bribe a public official. The statute allowed electronic eavesdropping for up to two months upon a standard of "a reasonable ground to believe that evidence of a crime may be thus obtained." Further two-month extensions of the original order could be granted if investigators made a showing that such surveillance would be in the public interest. The statute required neither notice to the person surveilled nor any justification of such secrecy. The communications sought did not have to be described with any particularity; surveillance requests had to identify only the person targeted and the phone number to be tapped. Finally, the statute did not require a return on the warrant, so law enforcement officers did not have to account to a judge for their use of evidence gathered.

Opinion of the Court

In an opinion written by Justice Tom C. Clark, the Supreme Court of the United States ruled that section 813-a violated the Fourth Amendment, made enforceable against the states by the Fourteenth Amendment, because it lacked "adequate judicial supervision [and] protective procedures." Notably, the Court invalidated the law on its face rather than as applied to the petitioner. The Court likened such an indiscriminate grant of authority to search for any evidence of any crime to a general warrant, a tool used by British authorities in colonial America that the Fourth Amendment was enacted to outlaw. The Court held that conversations are protected by the Fourth Amendment, and that the use of electronic devices to capture conversations thus constituted a "search." This holding predates by several months the more famous case of Katz v. United States, which extended Fourth Amendment protection to a conversation in a public phone booth based on the speaker's reasonable expectation of privacy.

Legacy

Academic Colin Agur argues that Berger, along with Katz v. United States, were responses by the Court to police and government abuse of telephone surveillance. Berger, specifically, limited police wiretapping when it struck down the New York statute for being overly broad.

See also

• List of United States Supreme Court cases, volume 388

External links

• Text of Berger v. New York, 388 U.S. 41 (1967) is available from: Google Scholar Justia Library of Congress Oyez (oral argument audio)