The opinion of the court was delivered by: RYAN
Defendants move before trial on the indictment to which they have pleaded not guilty for an order,
(1) suppressing all records, transcripts, and notes for any kind made of intercepted telephonic communications of defendants;
(2) suppressing all evidence obtained as a result or use of such intercepted communications;
(3) directing the government to turn over to them all records, recordings, transcripts and notes of such communications;
(4) suppressing all notes, information or memoranda obtained as a result of intercepting mail addressed to or mailed by the defendants, and all evidence obtained as a result thereof;
(5) dismissing the indictment upon the ground that it is found on evidence illegally obtained, directly or indirectly.
Defendant Gubitchev seeks in addition an order,
(1) directing the government to turn over to him all notes, information and memoranda of intercepted mails and addressed to or posted by him;
(2) suppressing all records, transcripts and notes of any kind made by dictaphone recordings of the voice of defendant, or any dictaphone recordings made from his home or place of work, and suppressing all evidence obtained as a result or by use of such recordings;
(3) directing the government to turn over to him such recordings, transcripts, notes and memoranda thereof.
It has been necessary on these motions to hold extended hearings and to receive oral and documentary evidence as to the nature, extent and duration of unlawful and interceptions, their substance and content and to ascertain what evidence was obtained as a result of them. The government has also been afforded full and ample opportunity to establish that a substantial portion of its case against defendants has independent origin.
Nature, Extent and Duration of Interceptions:
It is not disputed by the government that four separate telephone circuits were intercepted, that the interceptions were installed prior to the return of the indictment on March 10, 1949, and that they were continued for a long time thereafter and up to the eve of these hearings.
It has been established that a microphone installation was effected in the office used by defendant Coplon- Room 2220, Department of Justice Building, Washington, D.C. It was testified that this was installed on her desk. I find that telephone wires were used in connection with the transmission of the sounds picked up by the microphone to the agent who simultaneously monitored the interceptions of the telephone and the microphone eavesdropping amplifications. I am mindful of the fact that the Supreme Court has held that listening to conversation by means of a detectaphone constitutes eavesdropping only and not an unlawful interception. I rule that under the present circumstances, the holding of the Court in Goldman v. United States, 1942, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322, affirming United States v. Goldman, 2 Cir., 1941, 118 F.2d 310 is not applicable and that the auditions picked up by this microphone are interceptions. I have arrived at this conclusion because of the failure of the government to disclose how the microphone was installed and in what way it differed, if at all, from a wiretap. I consider all information secured by means of this microphone in the same class as that secured by telephone interception.
I find that the following taps were installed and maintained by agents and employees of the Federal Bureau of Investigation:
(a) Coplon residence- 3685 38th St., N.W. Washington, D.C. (referred to as the McLean Garden apartments), telephone No. Woodley 5219, installed January 6, 1949 continuously maintained until March 19, 1949;
(b) Coplon office- Room 2220, Department of Justice Building, Washington, D.C., telephone No. Republic 8200, ext. 163, installed January 25, 1949 continuously maintained until March 12, 1949;
(c) Coplon family residence- 178 Ocean Parkway, Brooklyn, N.Y.C., telephone Nos. Gedney 8-1048 and Ulster 3-6417, installed February 1, 1949 maintained until May 2, 1949, re-installed on July 12, 1949 and continuously maintained until November 10, 1949;
(d) Gubitchev residence- 64 W. 108th St., N.Y.C., telephone No. Academy 2-5823, installed February 1, 1949 continuously maintained until September 27, 1949.
I further find that the microphone was installed in the Coplon office on January 25, 1949 and continuously maintained until March 12, 1949, and that in connection with this microphone the telephone lines of the office telephone of this defendant were used to transmit the sounds within range of the microphone.
The alleged authorization of the Attorney General:
It is stated that these taps were installed 'pursuant to written authorization in each instance received from the Attorney General of the United States.' Such authorization did not clothe with legality the unlawful activities of the wire tappers nor detract at all from the interdiction ...