Before MEDINA and WATERMAN, Circuit Judges, and GALSTON, District Judge.
Salvatore Benanti appeals from a judgment of conviction of illegal possession and transportation of distilled spirits without tax stamps affixed thereto, in violation of 26 U.S.C. §§ 5008(b)(1), 5642. The case is important and we think of first impression, as we are called upon to formulate a rule to govern the admissibility in a federal court of evidence obtained by state officers in violation of Section 605 of the Federal Communications Act, 47 U.S.C.A. § 605, which prohibits any person "not being authorized by the sender" from divulging a communication intercepted by a wiretap. The search-and-seizure cases hereinafter discussed touch the issue closely, but they do not decide it, for they did not deal with the statute before us.
Appellant and his brother, Angelo Benanti, frequented the Reno Bar, on Elizabeth Street in New York City, and the two brothers made telephone calls from the Reno Bar.The New York City police, believing that one or both of the Benantis were dealing in narcotics in violation of state law, obtained a warrant, in accordance with New York law, New York Const. art. 1, § 12; N.Y. Code of Criminal Procedure § 813-a, from the Supreme Court of the State of New York, authorizing them to tap the telephone of the Reno Bar.
On May 10, 1956, by listening in on a conversation over the telephone between appellant and some other person, the state police officers learned that "eleven pieces" would be transported that night at a certain time and place in New York City. Acting pursuant to this information, the police stopped a car driven by appellant's brother Angelo, but they found no narcotics. Instead, they discovered hidden in the car eleven fivegallon cans of alcohol without the tax stamps required by 26 U.S.C. § 5008(b)(1). The Federal Alcohol and Tobacco Tax Division of the Treasury Department was notified and this prosecution followed. It was not until the cross-examination of one of the police officers at the trial that the prosecutor or any of his assistants had any knowledge or suspicion of the fact that there had been a wiretap. It is clear beyond cavil that no federal officer participated in any way in the wiretap or even knowingly offered any evidence which was discovered as a result of the wiretap. But it is equally clear that but for the wiretap there would have been no basis for any prosecution whatever, as the apprehension of Angelo and seizure of the "eleven pieces" led to the discovery of appellant's participation in the violations of federal law for which he has been convicted; and the sequence of cause and effect is clear.
Accordingly, as soon as the wiretap was disclosed at the trial, counsel for appellant objected and in due course made a proper and timely motion to suppress. The denial of this motion provides the major basis for this appeal.
Despite the warrant issued by the New York State court pursuant to New York law, we have no alternative other than to hold that by tapping the wires, intercepting the communication made by appellant and divulging at the trial what they had overheard, the New York police officers violated the federal statute. Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314; Id., 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307; Weiss v. United States, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298. Section 605 of 47 U.S.C.A. is too explicit to warrant any other inference,*fn1 and the Weiss case made its terms applicable to intrastate communications.The section provides:
"* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *."
But it does not necessarily follow, as appellant assumes, that wiretap evidence is inadmissible. As was said in Nardone v. United States, 308 U.S. 338, at page 340, 60 S. Ct. 266, at page 267:
"Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land."
Appellant argues that the statute itself, as interpreted by the Supreme Court, prohibits the use of wiretap evidence. Although the language of the earlier decisions is consistent with this position, it is no longer a tenable one, for the Supreme Court has upheld convictions based on wiretap evidence in both state and federal courts. Schwartz v. State of Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231; Goldstein v. United States, 316 U.S. 114, 62 S. Ct. 1000, 86 L. Ed. 1312. Thus, it must be some other principle that requires the exclusion of wiretap evidence in those cases in which it is inadmissible.
It is not difficult to discover what that principle is; the Supreme Court has told us. In Goldstein v. United States, supra, the court said at page 120 of 316 U.S., at page 1003 of 62 S. Ct.:
"Although the unlawful interception of a telephone communication does not amount to a search or seizure prohibited by the Fourth Amendment [Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322; Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944], we have applied the same policy in respect of the prohibitions of the Federal Communications Act * * *."
It becomes necessary for us, therefore, to ascertain the principle which governs the admissibility in a federal court of evidence obtained by ...