Berger v. New York

Ct. App. N. Y. Petition for writ of certiorari granted, limited to Questions 1 and 2 presented by the petition which read as follows:

“1. Assuming the basic Federal Fourth and Fifth Amendment constitutionality of New York State’s permissive eavesdrop legislation which allows electronic room eavesdropping or ‘bugging’ by ex parte Court order (N. Y. Code Crim. Proc. § 813-a), were the ex parte *968 Court orders for the room eavesdrops in this particular case, without which this prosecution stipulatedly could not have been instituted or maintained, nevertheless invalid under the Fourth Amendment because not based upon an adequate showing of probable cause?

Joseph E. Brill for petitioner. Frank S. Hogan for respondent. Victor Rabinowitz, Leonard B. Boudin, Samuel A. Neuburger and Raymond W. Bergan for Habel et al., as amici curiae, in support of the petition.

“2. Is the New York ex parte permissive eavesdrop legislation (N. Y. Code Crim. Proc. § 813-a) unconstitutional under the Federal Fourth, Fifth and Fourteenth Amendments as setting up a system which intrinsically involves trespassory intrusion into private premises, 'general’ searches for ‘mere evidence’ and invasion of the privilege against self incrimination; and were the particular room eavesdrops here involved unconstitutional on those grounds?”