Valparaiso University Law Review Volume 5 Number 3 Spring 1971 pp.676-682 Spring 1971 Criminal Law–California's "Vicarious Murder Theory" Extends Felony Murder Doctrine Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Criminal Law–California's "Vicarious Murder Theory" Extends Felony Murder Doctrine, 5 Val. U. L. Rev. 676 (1971). Available at: https://scholar.valpo.edu/vulr/vol5/iss3/11 This Comment is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. et al.: Criminal Law–California's "Vicarious Murder Theory" Extends Felon CASE COMMENTS CONSTITUTIONAL LAW-CRIAIINAL LAW: Warrantless Electronic Sur- veillance of Dissident Domestic Organizations under the National Security Exception. INTRODUCTION In United States v. Sinclair,' the defendants were indicted on charges of conspiring to bomb an office of the Central Intelligence Agency located in Ann Arbor, Michigan. Following the indictment, defense counsel filed a pretrial motion for disclosure of all records, logs and memoranda obtained from any electronic surveillance directed at the defendants pursuant to Alderman v. United States.2 The motion further requested an evidentiary hearing to determine whether any evidence upon which the indictment was based or which the Government intended to introduce at trial was tainted by such a surveillance.3 The Supreme Court ruled in Alderman that the Government must disclose to the defendant all conversations to which he was a party or that occurred on his premises that were overheard by means of any illegal electronic surveillance." Therefore, a ruling on the legality of the surveillance was necessary to determine what disposition should be made of Sinclair's motion. The issue before the court was whether the Attorney General, as 1. Criminal No. 44375 (E.D. Mich., Jan. 25, 1971). 2. 394 U.S. 165 (1969). 3. Weeks tv. United States, 232 U.S. 383 (1914), gave birth to the exclusionary rule prohibiting the admission in a federal court of any evidence gained in violation of the defendant's fourth amendment rights. Silverthorn Lumber Co. v. United States, 251 U.S. 285 (1920), expanded the exclusionary rule to prevent the admission of the fruits of such illegally acquired evidence. Silverman v. United States, 365 U.S. 505 (1961), and Katz v. United States, 389 U.S. 347 (1967), applied the expanded exclusionary rule to illegally overheard oral communications ruling for the first time that the interception of oral communications constitutes a "search and seizure" within the fourth amendment. The question to be determined in an evidentiary hearing for taint is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means suf- ficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488 (1963). 4. For a discussion of the constitutionality of the practice of wiretapping and electronic surveillance see Berger v. New York, 388 U.S. 41 (1967); Warden v. Hayden, 387 U.S. 294, 312 (1967) (Douglas, J., dissenting) ; Osborn v. United States, 384 U.S. 323, 349 (1966) (Douglas, J., dissenting) ; Clark, Wiretapping and the Constitution, 5 CALIF. WESTmxR L. REV. 1 (1968) ; Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U. PA. L. REV. 169 (1969) ; Note, Eavesdropping and the Constitution: A Reappraisal of the Fourth Amendment Framework, 50 MINN. L. REv. 378 (1965). Produced by The Berkeley Electronic Press, 1971 Valparaiso University Law Review, Vol. 5, No. 3 [1971], Art. 11 652 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5 an agent of the President, may authorize the warrantless eavesdropping on dissident domestic organizations' under the guise of protecting the "national security."'7 Ifthe Attorney General was deemed to possess this delegated power, then the eavesdropping would have been legal and disclosure of the information to the defendant would not have been required.' The ensuing arguments submitted by the Government for such warrantless eavesdropping have also been employed in two other recent cases.' It is asserted by the Government that the President, as Chief Executive, has the duty to "preserve, protect and defend the Constitu- tion." In accordance with that duty, he possesses the inherent con- stitutional power to authorize warrantless eavesdropping in cases in- volving the national security and to determine unilaterally whether action in a given situation would be in the interest of national security. This power is evidenced by three presidential memorandums and Title III of the Omnibus Crime Control and Safe Streets Act of 1968.10 The Government further contends that pursuant to the President's duty to "preserve, protect and defend the Constitution," it is "hardly unreason- able" for him to authorize eavesdropping without a warrant in situations involving groups considered to be threats to the existence of the Govern- ment.1 The court in Sinclair, unable to concur with the Government's reasoning, stated: An idea which seems to permeate much of the Government's argument is that dissident domestic organizations are akin 5. Unless otherwise indicated, "eavesdropping" will include wiretapping and bugging for the purposes of this comment. 6. The defendants in Sinclair are leaders of the White Panther Party having headquarters in Ann Arbor, Michigan. 7. The constitutionality of warrantless eavesdropping in national security cases has not been decided by the Supreme Court. See Katz v. United States, 389 U.S. 347, 358 n.23 (1967). For extended discussion of this issue see Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order," 67 MicH. L. Rv. 455 (1968) ; Theoharis, The "National Security" Justification for Electronic Eaves- dropping: An Elusive Exception, 14 WAYNE L. REv. 749 (1968); Note, Eavesdropping at the Government's Discretion-First Amendment Implications of the National Security Eavesdropping Power, 56 CORNmL L.Q. 161 (1970); Comment, Privacy and Political Freedom: Application of the Fourth Amendment to National Security In- vestigations, 17 U.C.L.A. L. REv. 1205 (1970). 8. Giordano v. United States. 394 U.S. 310 (1968) (White, J., concurring). 9. United States v. Smith, 321 F. Supp. 424 (C.D. Cal. 1971); United States v. Dillinger, Criminal No. CR 180 (N.D. Ill.,Feb. 20, 1970). This case is better known as the "Chicago Conspiracy Trial." 10. Omnibus Crime Control and Safe Streets Act of 1968, § 802, 18 U.S.C.A. §§ 2510-20 (1970). 11. The fourth amendment states in part: https://scholar.valpo.edu/vulr/vol5/iss3/11 et al.: Criminal Law–California's "Vicarious Murder Theory" Extends Felon 19711 CASE COMMENTS to an unfriendly foreign power and must be dealt with in the same fashion. There is great danger in an argument of this nature for it strikes at the very constitutional privileges and immunities that are inherent in United States citizenship. It is to be remembered that in our democracy all men are to receive equal justice regardless of their political beliefs or per- suasions. The executive branch of our government cannot be given the power or the opportunity to investigate and prosecute criminal violations under two different standards simply because certain accused persons espouse views which are inconsistent with our present form of government. 2 The court adopted the decision of United States v. Smith" which held that "in wholly domestic situations there is no national security exemption from the warrant requirement of the Fourth Amendment." The defense counsel's motion for disclosure and evidentiary hearing was granted. 4 The purpose of this comment is to examine the legitimacy of the Government's attempt to combine dissident domestic groups with hostile foreign elements under the heading of "national security." A considera- tion of the ramifications of the Sinclair decision and of the present inability of the courts and citizenry to deter illegal eavesdropping will also be included. THE "NATIONAL SECURITY" DISCREPANCY The memorandums of Presidents Roosevelt, Truman and Johnson imply the existence of presidential powers to act in the interest of "nation- al security." The confusion arises in an endeavor to characterize those situations which are to be embodied within that category. President Roosevelt's memorandum" to the Attorney General was issued in response to the ominous threat to national security posed by the Axis powers and their active supporters. In consideration of the increasing number of " 'fifth columns' [being formed] in other countries ...in preparation for sabotage," the President authorized the Attorney General to utilize "listening devices" to investigate "persons suspected The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... 12. United States v. Sinclair, Criminal No. 44375 (E.D. Mich., Jan. 25, 1971). 13. 321 F. Supp. 424 (C.D. Cal. 1971). 14. Appeal docketed, No. -, 6th Cir., Feb. 15, 1971. 15. Memorandum from President Roosevelt to Attorney General Jackson, May 21, 1940, on file in the Truman Library, Stephen Speingarn Papers; United States v. Smith, 321 F. Supp. 424,