Carter v. State

⁴¹³ O’Donnell, J., delivered the opinion of the Court. Following a nonjury trial in the Circuit Court for Prince George’s County before Judge James F. Couch, Jr., the petitioner, William Eugene Carter, was convicted of possession of heroin with intent to distribute in violation of Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 286 (a)(1). 1 Critical evidence, admitted at his trial, was 104.04 grams of heroin (34.6% pure) and 37.98 grams of starch (a cutting agent used in the distribution of heroin as a dilutent). These substances were seized on June 9, 1972, pursuant to a search and seizure warrant issued on June 8, 1972, by Judge Robert Mathias for the residence of the petitioner at apartment 926, 1836 Metzerott Road, Hyattsville, Maryland, a high rise apartment building of at least ten stories.

Judge Mathias issued the warrant upon the application and affidavit of Detective Elmer L. Snow of the Prince George’s County Police Department. Detective Snow, after specifying his police service, his specialized training in narcotics and his experience in investigating complaints of violations of the narcotic laws, attested to the following facts as bases for the issuance of the warrant: “That during the course of your affiant’s official duties on March 3, 1972 your affiant was contacted by a reliable confidential source of information. That the said confidential source of information is personally known to your affiant as reliable in that the said source has furnished information to your affiant over a period of approximately two years which has been found to be completely true, and whose information has been the direct cause which led to the arrest and convictions of approximately ten persons who were convicted of violating the Controlled Dangerous Substance Laws of the State of Maryland. That the said confidential source of information related to your affiant that a ⁴¹⁴ Negro/Male known only to the source as Chunkhead was involved in obtaining large quantities of Heroin from one William Eugene CARTER, a Negro male who resides inside apartment 926 at 1836 Metzerott Road, Hyattsville, Maryland.

That the source of information further related that the said William Eugene CARTER would only sell direct in transactions of Heroin to the said Chunkhead for fear of a police agent becoming involved. That the said source further related that the said William Eugene CARTER is known throughout drug dealers in Washington, D.C. as a major supplier of Heroin, and was known to keep large quantities of Heroin inside his apartment at 1836 Metzerott Road, Apartment 926, Hyattsville, Prince George’s County, Maryland. That the said source further related to your affiant that as recently as March 2, 1972 the source had personally gone with the said Chunkhead from his home at 1222 Queen St. N.E., Washington, D.C. to 1836 Metzerott Road, Hyattsville, Maryland where the said Chunkhead departed the vehicle and stated that he was going inside the premises to obtain Heroin from “Carter”. That after a short period of time, Chunkhead returned to the vehicle with an aluminum foil packet which the source personally used, and knew from his own drug use experience to be Heroin.

That due to the evasive manner in which the said William Eugene CARTER allegedly conducts the illicit transactions of Heroin, your affiant has verified the information received from the reliable confidential source of information in the following manner: On March 3, 1972 at 1900 hours your affiant, along with Lieutenant Hollis D. Jordan, Sergeant Joseph E. Thornberry, arid Detective John A. Lew of the Prince George’s County Police Department Vice Control Section began a surveilance [sic] on the premises at 1222 Queen Street, N.E., Washington, D.C. That at approximately 1930 ⁴¹⁵ hours these Detective’s, [sic] and your affiant personally observed a 1970 yellow Chevrolet, bearing Maryland Registration EA 72:56 arrive at the premise. That inside the said vehicle, your affiant personally observed, and recognized the two occupants of the vehicle. They are: Don Pedro DANIEL, and Harold James GADDY. Both of these persons are known to your affiant as violators of the Controlled Dangerous Substance Laws of the State of Maryland.

That your affiant has personally arrested both of these persons for violations of the Controlled Dangerous Substance Laws of the State of Maryland. That an unknown Negro Male later identified as “Chunkhead” was then observed leaving 1222 Queen Street, N.E., Washington, D.C. and entering the said 1970 Chevrolet operated by the said Don Pedro Daniel. That the three persons were then followed as they proceeded to 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland where the vehicle parked in front of the said 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland. That the Negro male known as Chunkhead then left the said vehicle at which time he was followed by Sergeant Joseph E. Thornberry, and Detective John A. Lew as he rode an apartment elevator to the ninth floor, where he knocked, and was admitted to apartment 926 at 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland.

That after approximately four minutes, “Chunkhead” departed the said premises, and returned to the vehicle operated by the said Don Pedro Daniel. That the vehicle was then followed as the three occupants returned to 1222 Queen St. N.E., Washington, D.C. where the subject known as Chunkhead left the vehicle, and went into 1222 Queen St. N.E., Washington, D.C. That surveilance [sic] at that time was stopped for fear of being observed. That at 2345 hours on March 3, 1972 your affiant ⁴¹⁶ made a records check with the Criminal Records Division of the Metropolitan Police Department of Washington, D.C. That a photograph of William Eugene CARTER, D.C. Identification #105-082 was obtained. That investigation at that time did reveal that the said William Eugene CARTER has been arrested for the following offenses: 2/18/42 — Automobile Larceny in Pikesville, Maryland, 11/9/46 — Murder in Washington, D.C., 2/10/47 — Manslaughter, 2/15/51 — Operating a Lottery, 8/9/68 — Possession of Stolen Government Property, 10/14/68 — Uttering United States treasury Checks, 9/11/69 — Uttering United States Treasury Checks, 8/26/71 — Operating a Lottery.

That on March 6, 1972 your affiant contacted a Mrs. Dunn who was the resident manager of the Presidential Towers Apartments at 1836 Metzerott Road, Hyattsville, Maryland. At that time, Mrs. Dunn identified D.C.I.D. Photograph of William Eugene CARTER as the same person residing in apartment 926 at 1836 Metzerott Rd., Hyattsville, Maryland. At that time it was found by your affiant that the said William Eugene CARTER was not carried on the lease of the said apartment, but was the person who usually paid the rent for the said apartment. That on April 11, 1972 your affiant was contacted by Special Agents of the United States Department of Justice, Bureau of Narcotics, and Dangerous Drugs.

That Special Agent SANTOS of that Agency related to your affiant that the said William Eugene CARTER is known by that agency to be an associate of one Norman SMITH and Alphonso JACKSON, two major narcotic violators in the Washington, D.C. Metropolitan area. That at 1230 hours on April 11, 1972, your affiant was telephonically contacted by the aforementioned confidential source of information who related that the said William Eugene CARTER has started delievering [sic] Heroin to 1222 Queen St. N.E. ⁴¹⁷ Washington, D.C. from his apartment at 1836 Metzerott Road, apartment 926, Hyattsville, Maryland because of fear of the said Chunkhead being followed to his residence where the drugs are maintained. That subsequent to the information as received from the confidential source, a surveilance [sic] was started at 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland. That at 1400 hours on that date, a negro male, recognized by your affiant from M.P.D.C. Photo #105-082 departed the said premises in a 1965 Ford Station Wagon bearing D.C. registration plates 806-949.

That a check with the Motor Vehicles Section of Washington, D.C. did reveal the said vehicle bearing District of Columbia Registration plates 806-949 to be listed to one William Eugene CARTER. That the said William Eugene CARTER proceeded to 1222 Queen St. N.E., Washington, D.C. where the said William Eugene CARTER went into the said premises, and the[n] departed. That subsequent to the visit by the said William Eugene CARTER, and more specifically on April 11, 1972, Special Agent Albert C. LOGAN of the United States Department of Justice, Bureau of Narcotics and Dangerous Drugs did make a Heroin buy for $80.00 from a Negro male known to Agent LOGAN as “Chunkhead” while inside the premises at 1222 Queen St. N.E., Washington, D.C. That on April 19, 1972 your affiant conducted a surveilance [sic] on the premises at 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland. That at 2340 hours the said William Eugene CARTER departed the said premises in a black Lincoln bearing District of Columbia Registration plates 859-631.

That a cheek by your affiant with the Department of Motor Vehicles of Washington, D.C. did reveal this vehicle to be listed to the said William Eugene CARTER. That the said William Eugene CARTER was followed by your affiant to 1222 Queen St. N.E., Washington, D.C. at ⁴¹⁸ which time he parked the said vehicle and entered the front door of 1222 Queen St. N.E., Washington, D.C. at which time the said William Eugene CARTER remained for approximately five minutes, and departed. That the surveilance [sic] was discontinued at that time for fear that your affiant would be observed. That on May 19, 1972 your affiant conducted a surveilance [sic] on the premises at 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland which began at 0920 Hours.

That at 0950 hours the said William Eugene CARTER did depart the premises in his black Lincoln bearing District of Columbia Registration plates 859-631. That the said William Eugene CARTER was followed by your affiant to 1222 Queen Street, N.E., Washington, D.C. at which time he did enter the said premise, remain for approximately four minutes, and depart. That on June 3, 1972 your affiant conducted a surveilance [sic] on the premises at 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland which began at 0810 hours. That at 0840 hours, the said William Eugene CARTER did depart the premises in his black Lincoln bearing District of Columbia Registration plates 859-631.

That the said William Eugene CARTER was followed by your affiant to 1222 Queen St. N.E., Washington, D.C. at which time he did enter the said premises, remain for approximately ten minutes, and departed. Your affiant stopped surveilance [sic] at this time for fear of being observed by the said William Eugene CARTER. That on June 8, 1972 your affiant was again contacted by the said confidential source of information who related that the said William Eugene CARTER was schedule[d] to make a large narcotics drop on the morning of June 9, 1972 at 1222 Queen St. N.E., Washington, D.C. That from the information as received from the ⁴¹⁹ confidential source of information, and which has been verified on numerous occasions by personal observations, and personal knowledge, your affiant feels that properties subject to search and seizure under the Controlled Dangerous Substance Laws of the State of Maryland are being concealed inside apartment 926 at 1836 Metzerott Road, Hyattsville, Prince George’s County, Maryland, and that your affiant requests that a search warrant be issued on the aforementioned facts and affidavit.” (Emphasis supplied.) . Pursuant to Maryland Rule 729 b 1, counsel for the petitioner filed a motion for the suppression of the property seized pursuant to the search and seizure warrant on the basis that it had “been obtained by an unlawful search and seizure.” 2 The motion, supplemented by an attached memorandum, alleged inter alia that the affidavit, made in application for the warrant, on its face failed to demonstrate the existence of probable cause and that the statements therein were untrue, incomplete and constituted a material misrepresentation to, and a deliberate deception of, the court.

When the motion came on for hearing before Judge Mathias — the same judge who had issued the warrant 3 — counsel for the petitioner explicated that the affidavit had failed to disclose to the court that information garnered during the investigation, as a basis for the affidavit, had been obtained through the employment by the police of illegal electronic surveillance and that the failure to disclose ⁴²⁰ such electronic surveillance in the affidavit constituted a deception upon the court which issued the warrant; secondarily, it was asserted that the affidavit did not set forth sufficient underlying circumstances that the alleged informants were credible and reliable. Counsel particularized his contentions by asserting that the police had commenced the illegal eavesdropping prior to March 3, 1972; 4 that they had occupied an adjacent apartment “and did use it in such a manner as to make it obvious that its [use] was for the purpose of illegal eavesdropping”; that the affiant had requested, and been refused, the cooperation of the apartment engineer in installing a wire tap; that it was subsequently discovered that the room in which the building’s telephone equipment was located had been forcibly entered, that a wire tap had been found upon the telephone of the building engineer and that a telephone company serviceman had found a wire tap upon a tenant’s telephone. When Judge Mathias indicated to counsel that he would not permit him, in challenging the existence of probable cause, to go beyond the confines of the affidavit, counsel proffered to offer evidence: (a) that a Mrs. Dunn, the resident manager of the apartment building, would testify ⁴²¹ that she had been contacted, prior to March 3, 1972, by Detective Snow and other officers, had been requested to give them a key to apartment 918, then vacant, which had a common wall with the apartment of Carter (apartment 926), and that with the use of such keys the police had come and gone at their leisure; (b) that the apartment switchboard operator, Mrs. Gordon, would testify that a Mr. Spaulding, a C. & P. Telephone Company serviceman, in the course of his regular duties, had reported to her that he had found a “tenant’s phone was tapped”; (c) that the building engineer, Mr. Garrett, would testify that prior to March 3, 1972, he had been contacted by Detective Snow and other officers and had been requested to assist them in installing a wire tap; that he refused without the exhibition of a court order, as a result of which he himself had become a “suspect” and discovered a tap on his telephone through a connection in the “phone room”; that additionally he had received information from the building’s “security people” and had personally observed that the room for the telephone equipment had been forcibly opened shortly after his refusal of cooperation; (d) that Detective Snow [the affiant] would testify that he and other police agents had installed one or more wire taps on phones in the building, had overheard and recorded conversations therefrom and that at least one of such wire taps had been made pursuant to court order; (e) that the witnesses would testify that both prior to and after March 3rd illegal electronic surveillance had been conducted by the police, that a wire tap was placed upon the premises of one Hardy and that the defendant’s apartment had been subjected to such electronic surveillance. Notwithstanding the proffer, no such testimony was received — or allowed; in denying the motion Judge Mathias ruled that the affidavit itself sufficiently established the existence of probable cause for the issuance of the warrant and “[as] to the validity of the search warrant the court will not take any additional evidence.” The Court of Special Appeals, in affirming the petitioner’s conviction, in an unreported per curiam, Carter v. State [No. 404, Sept. Term, 1973, decided March 14, 1974], had “no ⁴²² difficulty in finding that ample probable cause was established” [from the affidavit].

Carter’s contention that he had been denied due process of law “when, at the hearing on his motion to suppress, the hearing judge declined to hear testimony as to possible wiretapping or eavesdropping, with the fruits of such primary illegality tainting the probable cause for the issuance of the warrant,” was glossed over by simply finding “it unnecessary to deal at this time with this troublesome question, because the direct police observations, which we have held sufficient to establish probable cause, are not even arguably the fruits of some poisonous tree.” That court, in passing, opined that “[i]t is by no means certain that, even if an unconstitutional wiretap or unconstitutional eavesdrop could be shown, that the fruits of such primary illegality could be used to diminish facially adequate probable cause.” We granted certiorari because it appeared that if an unlawful wire tap or electronic surveillance had been used that the fruits of any such illegality could be of significance in tainting evidence which otherwise facially set forth a basis for the existence of such probable cause. As early as 1956 the General Assembly, in enacting the Maryland Wire Tapping Act, declared that “[t]he right of the people to be secure against unreasonable interception of telephonic and telegraphic communications shall not be violated”; it further declared it to be the public policy of this state “that the detection of the guilty does not justify investigative methods which infringe upon the liberties of the innocent.” See Maryland Code (1957, 1971 Repl. Vol.) Art. 35, § 92 [now codified in Courts and Judicial Proceedings Article as § 10-401], See also Robert v. State, 220 Md. 159, 169 , 151 A. 2d 737, 742 (1959); Manger v. State, 214 Md. 71, 75-76 , 133 A. 2d 78, 80-81 (1957). That Act, providing that “[o]nly evidence obtained in conformity with the provisions of this subtitle shall be admissible in evidence,” (Article 35, § 97), prohibited the interception of telephonic and telegraphic communications etc., except upon an ex parte order issued by a judge of a court of general jurisdiction, upon a verified application of the Attorney ⁴²³ General, or any State’s Attorney, upon the substantive grounds, and in accordance with the procedure specified in Art. 35, § 94 [now Courts and Judicial Proceedings Article, § 10-403].

The provisions specified in § 94 for the issuance of an ex parte order for the interception of a telephonic or telegraphic communication were equated, in both Robert v. State, supra, and Manger v. State, supra, with applications setting forth facts, generally similar to those required for the issuance of a search warrant. Complementary to the provisions of the Maryland Wire Tapping Act, the General Assembly, by Ch. 706 of the Acts of 1959, enacted Maryland Code (1957, 1971 Repl. Vol.) Art. 27, §§ 125A-D, making it a misdemeanor for any person “to use any electronic device or other device or equipment of any type whatsoever in such manner as to overhear or record any part of the conversation or words spoken to or by any person in private conversation without the knowledge or consent, expressed or implied, of that other person.” Art. 27, § 125A (a). 5 That statute, however, exempted from its applicability such acts when done pursuant to an ex parte court order. Art. 27, § 125A (b) and (c).

See also Art. 35, § 94. In enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 , Congress “unquestionably intended it as an offspring” of the trilogy of eavesdropping cases decided during 1966 and 1967 by the United States Supreme Court in Osborn v. United States, 385 U. S. 323 (1966) (upholding the use of a court authorized recording device and the admissibility of a recording of a conversation between an investigator, who had a relative on a jury panel, and the petitioner, a lawyer, who expressed an ⁴²⁴ interest in approaching the juror); 6 Berger v. New York, 388 U. S. 41 (1967) (striking down New York’s permissive eavesdropping statute, New York Code Crim. Proc. § 318-a, under which a court order permitted the installation of a recording device in an attorney’s office for a period of 60 days, because the statute was “too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and ... violative of the Fourth and Fourteenth Amendments”); and in Katz v. United States, 389 U. S. 347 (1967) (holding the unlawful use of an electronic listening and recording device attached to the outside of a telephone booth without any prior judicial sanction as being in violation of the Fourth Amendment). See State v. Siegel, 266 Md. 256, 264 , 292 A. 2d 86, 90 (1972).

The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression; much of Title III was drawn to meet the constitutional requirements for electronic surveillance enunciated by the Supreme Court in Berger and in Katz. United States v. United States District Court, 407 U. S. 297, 302 (1972). 18 U.S.C. §§ 2510-2520 comprehensively provides for the authorization of electronic surveillance but only when conducted in accord with its standards. The classes of crimes within its scope are specified in § 2516; such surveillance is subject to prior court order; both wire and oral communications are within its protection. Section 2518 sets forth the detailed and particularized application necessary to obtain such an order, as well as carefully circumscribed conditions for its use.

Among other things, § 2518 (10)(a) permits any aggrieved person, in any trial or proceeding, in or before any court, to move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the ground that its interception was unlawful, or that the order of authorization was insufficient on its face, or that the interception was not made in conformity with the order of authorization or approval. Section 2518 (9) ⁴²⁵ requires that the defendant be furnished the contents of any such interception, or evidence derived therefrom not less than ten days before the trial, etc., else the contents of such intercepted communication, or evidence derived therefrom, “shall not be received in evidence or otherwise disclosed in any trial.” 18 U.S.C. § 2515 provides: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, ... in or before any court, grand jury,... or other authority' of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” (Emphasis supplied.) In State v. Siegel, supra, Judge Digges, who wrote the opinion for the Court, after a thorough examination of the holdings in Osborn, Berger and Katz , and a complete analysis of the provisions In 18 U.S.C. § 2518 , found that the statute was in conformity with the holdings in Osborn , provided for judicial intervention, the chief failing found in Katz , and responded to the “four basic problem areas” involving the scope of the New York statute, enumerated in Berger . Thus, satisfied that the statute gratified the shortcomings found in Katz and Berger , the court concluded that “Title III is not violative of the Fourth Amendment.” 266 Md. at 268-71 , 292 A. 2d at 93-94 . We further noted in Siegel that the federal act is “not self-executing as applied to the states”; that § 2516 (2) provided for an application to be made by the prosecuting attorney of any state or political subdivision, in conformity with § 2518 if “authorized by a statute of that state.” Holding that although a state act which is more closely circumscribed than the federal law is certainly permissible, under the holdings in Robert v. State, supra, any such state statute cannot be less restrictive than the federal statute, and finding the provisions of Art. 35, §§ 92-99 and Art. 27, ⁴²⁶ §§ 125A-D, to be such “applicable state statutes” as envisioned under § 2516 (2), the Court concluded that “compliance must be had with whichever law is more constricting, be it federal or state,” and that the provisions of Title III, found to be constitutional, “may be properly implemented” by state statute. 266 Md. at 272 , 292 A. 2d at 95 .

In holding that the surveillance in Siegel “failed to meet certain preconditions designed to protect appellee’s constitutional rights, the evidence that arose from it must be suppressed,” the Court rejected a rationalization of “substantial compliance” with the provisions of 18 U.S.C. § 2518 by stating that “[t]he statute sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” 266 Md. at 274 , 292 A. 2d at 95 . In United States v. United States District Court, supra, although the Court held that the provisions of 18 U.S.C. § 2511 (3)(c) did not constitute a grant of authority upon the authorization of the Attorney General to conduct a warrantless surveillance in a domestic security case, it pointed out that there was no question of doubt “as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest,” citing both Katz v. United States, supra, and Berger v. New York, supra. 407 U. S. at 308 . In United States v. Giordano, 416 U. S. 505 (1974), the Court construed 18 U.S.C. § 2516 (1) to limit the power to authorize wire tap applications to the Attorney General and to any Assistant Attorney General he might designate, but not to include the Executive Assistant to the Attorney General. In pointing out that that interpretation of § 2516 (1) was supported by the purpose of the Act, effectively to prohibit all interceptions of oral or wire communications except those specifically provided for, Mr. Justice White, who delivered the majority opinion for the Court, stated: “The purpose of the legislation, which was passed in 1968, was effectively to prohibit, on the pain of criminal and civil penalties, all interceptions of oral ⁴²⁷ and wire communications, except those specifically provided for in the Act, most notably those interceptions permitted to law enforcement officers when authorized by court order in connection with the investigation of the serious crimes listed in § 2516.

Judicial wiretap orders must be preceded by applications containing prescribed information,. § 2518 (1). The judge must make certain findings before authorizing interceptions, including the existence of probable cause, § 2518 (3). The orders themselves must particularize the extent and nature of the interceptions that they authorize, § 2518 (4), and they expire within a specified time unless expressly extended by a judge based on further application by enforcement officials, § 2518 (5). Judicial supervision of the progress of the interception is provided for, § 2518 (6), as is official control of the custody of any recordings or tapes produced by the interceptions carried out pursuant to the order, § 2518 (8).

The Act also contains provisions specifying the circumstances and procedures under and by which aggrieved persons may seek and obtain orders for the suppression of intercepted wire or oral communications sought to be used in evidence by the Government. § 2518 (10)(a).” 416 U. S. at 514-15 . (Footnote omitted.) The Court concluded “that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored.” 416 U. S. at 528 . Compare United States v. Chavez, 416 U. S. 562 (1974). In applying the provisions of § 2518 (10)(a)(i), providing for the suppression of evidence on the ground the communication was “unlawfully intercepted,” it was stated: “The words ‘unlawfully intercepted’ are themselves not limited to constitutional violations, and we think Congress intended to require suppression ⁴²⁸ where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U. S. at 527.

In holding that not only the primary but derivative evidence as well secured by the interceptions under the court orders must be suppressed under § 2518, upon a motion made under § 2518 (10)(a), Mr. Justice White, after pointing out that in the Government’s application for an extension of the interception order it was sought not only to intercept the conversations of Giordano, who alone was expressly named in the initial application and order, but of nine other named persons who were alleged to be involved with Giordano, stated: “It is apparent from the foregoing that the communications intercepted pursuant to the extension order were evidence derived from the communications invalidly intercepted pursuant to the initial order. In the first place, the application sought and the order granted authority to intercept the communications of various named individuals not mentioned in the initial order. It is plain from the affidavit submitted that information about most of these persons was obtained through the initial illegal interceptions.” 416 U. S. at 531-32. Finding that the results of the conversations overheard under the initial order were essential, both in fact and in law, to any extension of the intercept authority, the Court concluded that the “communications intercepted under the extension order are derivative evidence and must be suppressed.” 416 U. S. at 533.

See also United States v. Bernstein, 509 F. 2d 996 (4th Cir. 1975) [The Daily Record, February 10, 1975], holding that Title III provides not only a right not to have unlawful intercepts used in court, but does more: it creates a right not ⁴²⁹ to be overheard except in conformity with its provisions, citing 18 U.S.C. § 2511 (1). That Court concluded “from the unequivocal language of Title III that Congress intended any unlawful invasion of an aggrieved person’s privacy to be sufficient harm in itself to require suppression. Cf. United States v. Giordano, 416 U. S. 505, 524-29 (1974).” 509 F. 2d at 1004 .

Under our holdings in Siegel and the holdings in Giordano , any electronic surveillance may be conducted only when done in accord with the rigid constraints imposed by 18 U.S.C. §§ 2510-2520 . 7 Thus, if Carter “was a party to any intercepted wire or oral communication, or a person against whom the interception was directed” he, as an “aggrieved person” (§ 2510 (11)), would be entitled under § 2518 (10)(a)(i) to move “to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom,” if such communication was “unlawfully intercepted,” in violation of the statute. A “conversation” is within the Fourth Amendment’s protection and the use of electronic devices to capture it is a “search” within the meaning of that amendment. See Berger v. New York, 388 U. S. at 51 , citing Olmstead v. United States, 277 U. S. 438 (1928). In Katz v. United States, supra, the Court, finding that “the Fourth Amendment protects people, not places” ( 389 U. S. at 351 ), rejected the “trespass doctrine” found necessary in Olmstead v. United States, supra, and in Goldman v. United States, 316 U. S. 129 (1942), as no longer controlling; and in finding that the recordation of the petitioner’s words while using the telephone booth to which the device had been attached constituted a “ ‘search and seizure’ within the meaning of the Fourth Amendment,” expressly held, citing Silverman v. United States, 365 U. S. 505, 511 (1961), “that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral ⁴³⁰ statements, overheard without any ‘technical trespass under . . . local property laws’ ” and “that the reach of that [Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” 389 U. S. at 353 .

See also Desist v. United States, 394 U. S. 244 (1969), holding that Katz was to be applied prospectively only. As early as 1920, in Silverthorne Lumber Co. v. United States, 251 U. S. 385 , the Supreme Court held that records initially seized “without a shadow of authority,” which had been inspected and copied by the District Attorney, could not supply a valid basis for a subpoena to produce the original of the documents — which had been ordered returned. Mr. Justice Holmes, who delivered the majority opinion of the Court, stated that “the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed,” and concluding that to hold otherwise would reduce “the Fourth Amendment to a form of words,” stated that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all” — recognizing, of course, an exception when such knowledge “is gained from an independent source.” 251 U. S. at 392 . In Nardone v. United States, 302 U. S. 379 (1937), the Court reversed the petitioner’s convictions on their first trial because they were procured by wire tap evidence in violation of § 605 of the Communications Act of 1934.

Upon conviction, following a new trial, the case revisited the Court in Nardone v. United States, 308 U. S. 338 (1939), presenting as its only question: “ ‘whether the [trial] judge improperly refused to allow the accused to examine the prosecution as to the uses to which it had put the information,’ ” — which had vitiated the original conviction. In reversing the convictions and remanding the case to the District Court for further proceedings the Court