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March 12, 1958

Joseph BURACK, Plaintiff,
The STATE LIQUOR AUTHORITY OF The STATE OF NEW YORK and Edward Silver as District Attorney of The County of Kings, Defendants

The opinion of the court was delivered by: RAYFIEL

Under the authority of a license issued to him by the defendant, New York State Liquor Authority, hereinafter called The Authority, the plaintiff owns and operates a retail package liquor store in the Borough of Brooklyn, in this District.

The Authority has instituted a proceeding under the Alcohol Beverage Control Law of the State of New York for the revocation or suspension of the license, and the plaintiff, claiming that The Authority intends to use certain illegally-obtained evidence in said proceeding, asks for a preliminary injunction enjoining such use. It is his contention that the revocation, or even suspension, of his license, a valuable property right, will result in irreparable loss or damage.

 The plaintiff charges that the evidence in question was obtained by means of a wiretap of the telephone of his son, in clear violation of Section 605 of the Federal Communications Act (47 U.S.C.A. § 605), which provides, in pertinent part, that no person, not being authorized by the sender thereof, shall intercept any communication and divulge its contents, substance, purport or meaning.

 The plaintiff relies chiefly on the case of Benanti v. United States, 355 U.S. 96, 78 S. Ct. 155, 157, 2 L. Ed. 2d 126. There the Court reversed the judgment of the Court of Appeals, 2 Cir., 244 F.2d 389, which had affirmed a conviction in the district court, because of the admission of evidence obtained by state law-enforcement officers by means of wiretapping, although an order authorizing such obtainment had been issued in accord with Section 813-a of the New York Code of Criminal Procedure.

 In Benanti v. United States, supra, the Court said: 'In Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314, and 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307, this Court held that evidence obtained from wiretapping by federal agents was inadmissible in federal court. In Schwartz v. State of Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231, the same type of evidence was held admissible in a state court where it had been obtained by state agents. The case before us, containing elements from these three cases, forces a choice between the different results reached.

 'The Nardone decisions laid down the underlying premises upon which is based all subsequent consideration of Section 605. The crux of those decisions is that the plain words of the statute created a prohibition against any persons violating the integrity of a system of telephonic communication and that evidence obtained in violation of this prohibition may not be used to secure a federal conviction. Nardone v. United States, 302 U.S. 379, 382, 58 S. Ct. 275, 276, 82 L. Ed. 314. Moreover, as the second Nardone decision asserts, distinctions designed to defeat the plain meaning of the statute will not be countenanced. 308 U.S. 338, 340, 60 S. Ct. 266, 267, 82 L. Ed. 307. We hold that the correct application of the above principle dictates that evidence obtained by means forbidden by Section 605, whether by state or federal agents, is inadmissible in federal court.'

 Addressing itself to the respondent's argument that under Schwartz v. Texas, supra, the wiretap evidence should be admissible in a federal court because it had been obtained without the participation or even knowledge of federal officers, the Court said: '* * * Schwartz v. Texas does not indicate approval of such a proposition. Both a state court and state law enforcement officers were there involved. The rationale of that case is that despite the plain prohibition of Section 605, due regard to federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear indication to that effect. In the instant case we are not dealing with a state rule of evidence. Although state agents committed the wiretap, we are presented with a federal conviction brought about in part by a violation of federal law, in this case in federal court.'

 Answering the respondent's alternative argument that the wiretap was permitted by the law of the State of New York, and was not violative of Section 605, because that section was too general in its terms to prohibit the authorization of a wiretap in the proper exercise of its police functions, the Court further said: '* * * We read the Federal Communications Act, and Section 605 in particular, to the contrary.

 ' The Federal Communications Act is a comprehensive scheme for the regulation of interstate communication. In order to safeguard those interests protected under Section 605, that portion of the statute pertinent to this case applies both to intrastate and to interstate communications.' (Emphasis added.)

 It does not necessarily follow, however, that the Supreme Court would take a similar position in the case at bar, involving, as it does, a proceeding by an administrative agency of the state. It may in such a case hold, as it did in Schwartz v. Texas, supra (344 U.S. 199, 73 S. Ct. 234), that evidence obtained by state officers is admissible in such a proceeding, for there the Court said:

 'We are dealing here only with the application of a federal statute to state proceedings. Without deciding, but assuming for the purposes of this case, that the telephone communications were intercepted without being authorized by the sender within the meaning of the Act, the question we have is whether these communications are barred by the federal statute, § 605, from use as evidence in a criminal proceeding in a state court.

 'We think not. * * * Although the intercepted calls would be inadmissible in a federal court, it does not follow that such evidence is inadmissible in a state court. Indeed, evidence obtained by a state officer by means which would constitute an unlawful search and seizure under the Fourth Amendment to the Federal Constitution is nonetheless admissible in a state court, Wolf v. People of State of Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782, while such evidence, if obtained by a federal officer, would be clearly inadmissible in a federal court. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652. The problem under § 605 is somewhat different because the introduction of the intercepted communications would itself be a violation of the Statute, but in the absence of an expression by Congress, this is simply an additional factor for a state to consider in formulating a rule of evidence for use in its own courts. * * *'

 The Authority relies chiefly on the claim that before applying to this court for relief the plaintiff must exhaust such corrective process as are available in the state courts.

 Section 121 of the Alcohol Beverage Control Law of the State of New York provides that the revocation, cancellation or suspension of a license by The Authority is subject to review by the Supreme Court of the state in the manner provided by Article 78 of the New York Civil Practice Act, or by any other appropriate ...

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