Full opinion text
OPINION POLLACK, District Judge. Federal habeas corpus is sought herein by a state prisoner. These proceedings are the culmination of an “almost unparalleled succession of collateral attacks [by him] on his conviction both in state and federal courts”. The matter came before this Court following a decision of the Court of Appeals for the Second Circuit reversing the denial of a hearing on petitioner’s claims and remanding his petition for habeas corpus to this Court with the direction that an evidentiary hearing be held on- certain of petitioner’s contentions. The appellate court suggested that this petition together with others pending in the Southern and Western Districts of New York be placed in one bundle and be referred to one Judge to avoid undue drain on judicial time. Furthermore, the court said: “We also place Pugach on notice that if he has still other federal claims, these must be promptly asserted along with the ones now pending.” 411 F.2d at 181. The determination of the Court of Appeals referred to furnishes the following succinct statement of the background for all the pending matters: Appellant Pugach, a lawyer, was indicted in 1959 by a New York grand jury for a number of crimes arising out of an alleged conspiracy whereby, using Al Smith Newkirk as an intermediary, he hired Heard Harden and Walter McMillian to maim his former girl friend, Linda Riss, by hurling lye in her face. McMillian and New-kirk pleaded guilty. Pugach and Harden stood trial and were convicted. Pugach was sentenced in 1962 for an aggregate of 15 to 30 years in prison. His conviction was affirmed by the Appellate Division, People v. Pugach, 21 A.D.2d 854, 251 N.Y.S.2d 1007 (1st Dept. 1964) and by the Court of Appeals, 16 N.Y.2d 504, 260 N.Y.S. 2d 444, and the Supreme court dismissed his appeal for want of a substantial federal question, 373 U.S. 575, 86 S.Ct. 1077, 16 L.Ed.2d 108 (1966). [411 F.2d 177, 178.] Accordingly, the cases presented to this Court consist of five petitions for a writ of habeas corpus as well as one Civil Rights action brought under Title 42 U.S.C. § 1983. Three of these petitions were originally filed in the Southern District of New York. The other three cases were filed in the Western District of New York and following the suggestion of the Court of Appeals mentioned above, were transferred to this Court. PRIOR ADJUDICATION On July 30, 1969, at the direction of the Court and pursuant to the admonition of the Court of Appeals that petitioner must promptly assert any other federal claims he wishes to raise along with the ones now pending, United States ex rel. Pugach v. Mancusi, 411 F.2d 177, .181 (2d Cir. 1969), cert. denied 396 U.S. 889, 90 S.Ct. 172, 24 L.Ed.2d 163 (1969) petitioner executed a notice of election of claims listing the following bases for relief: Petitioner claims (1) that evidence was used against him which was obtained as the tainted fruit of trespassory eavesdropping, carried out under a defective warrant; (2) that statements and acts of his, coerced by police agents through blackmail and fraud, were used against him at trial; (3) that the victim of his alleged assault and others testified against him perjuriously while the prosecutor concealed conflicting statements made previously by these witnesses; (4) that he was denied the right to act as his own counsel after his retained counsel was temporarily relieved; and (5) that his trial counsel was incompetent. Petitioner sought to supplement his election by a petition sworn to October 6, 1969, in which he included the claim that he was deprived of his Sixth Amendment right to confrontation and effective cross-examination by the admission during his trial of the confession of a co-defendant which incriminated him. The requested addition was accepted by the Court at a pre-hearing conference on November 7, 1969, at which petitioner acknowledged that the six claims represented all the federal grounds for relief which he had with respect of his conviction. In preparation for the determination of the issues herein, the court conducted a painstaking investigation of the steps taken by Mr. Pugach in this and in the Western District of New York, since his conviction. This brought to light the fact that all six claims asserted herein were adjudicated on the merits and habeas petitions thereon were denied, in at least one previous final federal district court determination. No appeals therefrom were taken by Mr. Pugach. The prior determination of these claims is embodied in the order dated December 11, 1964, of Judge Harold P. Burke of the United States District Court for the Western District of New York, which denied six separate habeas petitions and supplementary applications. The petitions were all of the 1964 vintage, dated April 14 and 24, May 4, June 16 and 22, and July 29, respectively. They were denied without an evidentiary hearing upon Judge Burke’s specific finding of fact [no. 12] that an examination of the trial record, the record of post-trial proceedings, and the briefs on appeal in the Appellate Division of the New York Supreme Court was sufficient and adequate for a determination of all questions presented. United States ex rel. Pugach v. Wilkins, Civ.No. 11,004 at 9 (W.D.N.Y. Dec. 11, 1964) [hereinafter cited as Wilkins]. Relevant to Pugach’s claims in his election of July 30, 1969, are the following findings of Judge Burke: Re (1) —“no basis for his [Pugach’s] claim that he was denied due process of law by the illegal use of eavesdrop evidence,” Wilkins, at 10; re (2) —“no basis for his claim that he was denied due process of law by the admission in evidence of acts and declarations of petitioner resulting from acts of extortion and threats of the district attorney and the police,” Wilkins, at 10; re (3) —“no basis for his claim that he was denied due process by the willful use of perjured testimony,” Wilkins at 10; re (4) —“no basis for his claim that he was denied due process in what he calls the court’s refusal to allow him to defend himself,” Wilkins, at 9; and re (5) —“The petitioner was represented at the trial by two attorneys who were able and competent.” Wilkins, at 9. Bearing on Pugach’s additional claim asserted in his supplementary petition of October 6, 1969, is Judge Burke’s finding that there is “no basis for his claim that he was denied due process of law by the instruction to the jury that out-of-court statements made by a co-defendant, not in the presence of petitioner, are evidence against the petitioner,” and the finding that there is “no basis for his claim that he was denied due process of law by the admission of evidence unconnected to the petitioner.” Wilkins, at 10. The apparent oversight by the Court of Appeals of these adverse determinations from which no appeal was taken underscores the advisability of the movement under way to install a central registry for all post-conviction applications made by a defendant, which would be indexed under a number assigned to each individual at the time of conviction. While traditional notions of res judicata do not literally apply to petitions for habeas corpus, Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Smith v. Yeager, 393 U.S. 122, 124-125, 89 S.Ct. 277, 21 L.Ed.2d 246 (1968), the courts and Congress nevertheless have long recognized that under appropriate circumstances, successive applications for the same relief need not be entertained. See, e. g., Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924), and cases cited in Sanders v. United States, supra; 28 U.S.C. § 2244. Under subsection (a) of § 2244, a District Judge is not required to entertain an application for a writ of habeas corpus if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry. The Supreme Court has spelled out the statutory standard for declining to consider successive applications on grounds previously heard and determined : Controlling weight may be given to denial of a prior application for federal habeas corpus * * * relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077 (1963). The Supreme Court, furthermore, said that by the “same ground” it meant the same “sufficient legal basis for granting the relief sought by the applicant,” even if new factual allegations were used to raise the old ground. Sanders, at 16, 83 S.Ct. at 1077. By an adjudication on the merits, the Supreme Court signified either the prior holding of an evidentiary hearing or the conclusive resolution of factual issues raised in prior applications on the files and records therein. Id. The Supreme Court indicated that the “ends of justice” would normally be served by a prior determination on the merits except in the following cases: If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; we canvassed the criteria of a full and fair evidentiary hearing recently in Townsend v. Sain, supra [372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)], and that discussion need not be repeated here. If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Sanders v. United States, 373 U.S. 1, 16-17, 83 S. Ct. 1068, 1078 (1963). The Supreme Court, in Sanders, also held that the burden is on the petitioner to show that the ends of justice would be served by a redetermination of a ground previously decided against him on the merits. Furthermore, the Court of Appeals has recently held it an abuse of discretion to entertain a subsequent petition for habeas on a previously determined ground, under the rubric of the “ends of justice”, where the facts were adequately developed in a previous application, no change of law has occurred, and the petitioner did no more than “express the opinion that the prior decision of this court was incorrect.” United States ex rel. Schnitzler v. Follette, 406 F.2d 319 (2d Cir. 1968), cert. denied, 395 U.S. 926, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969). An examination of the petitions before Judge Burke and the petitions before this Court underlying Mr. Pugach’s recent election of claims and the supplement thereto makes it clear that the same legal bases for relief were relied on, and hence the “grounds” are identical. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068 (1963). Furthermore, since Judge Burke denied an evidentiary hearing on the specific finding that the “files and records conclusively resolved” the factual issues, Sanders, supra, at 16, 83 S.Ct. 1068, the adjudication was on the merits. Moreover, the Court is convinced that Judge Burke’s denial of an evidentiary hearing on the previous applications was consonant with the Supreme Court’s standards enumerated in Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 700 (1963), and that petitioner has failed either to make new factual allegations which entitle him to a hearing or to show an intervening change of law which substantially affects the disposition of his claims. The “ends of justice” neither require nor are they served by entertaining Mr. Pugach’s present habeas applications. These may be dismissed appropriately and solely on the strength of Judge Burke’s prior adjudication thereon. Nevertheless, mindful of the considerable energies expended by all concerned herein and in spite of the Court’s opinion that so doing is an unnecessary and possibly an inappropriate legal exercise, in the interest of closing any gaps that might be held to exist, the Court elects to again test each of Pugach’s claims on the evidentiary bases presented in the hearings. PRELIMINARY Prior to the commencement of the hearings herein, the petitioner declined an assignment of counsel. He assured the Court that he understood the nature and extent of the proceedings, was capable of representing himself adequately, and moreover, would have available to him, continuously, the advice of Mr. Paul Vladimir, a practising attorney, personal friend and fellow law school alumnus, whom Pugach planned to consult. The petitioner assured the Court that he would not change his mind and would not during the proceedings, request an assignment of counsel. He also declined any other form of assistance other than aid in the production of records and the service of subpoenas on witnesses. The records and witnesses desired were made available. A meeting preliminary to the hearing canvassed the agenda to be followed and a convenient date for the start of the hearing was then agreed upon. The hearings commenced on November 24, 1969, and were concluded on December 1, 1969. The petitioner called twelve witnesses including himself and adduced some thirty exhibits. The transcript of the 13 week trial in the state court was made part of the record and was used extensively by the petitioner in questioning certain witnesses. The State relied solely on the direct and cross-examinations of the witnesses called by the petitioner. After the Court had studied the record, the parties were given the opportunity to argue the points of law involved. The claims asserted in the petitioner’s notice of election (amended), will now be considered, seriatim. I. EAVESDROPPING CLAIMS Petitioner has contended that the state’s use of evidence obtained through eavesdropping infringed his Fourth and Fifth Amendment rights in various respects. He claims that the orders to plant microphones in his law office were obtained by the police without probable cause and were, therefore, violative of the Fourth Amendment; that even if orally apprised of facts constituting probable cause, the failure of the judges to make a record of such facts invalidated the orders; that the orders lacked requisite particularity in failing to designate which persbns’ conversations [and which conversations] were to be seized; and that the orders permitted eavesdropping for an unreasonable duration. Furthermore, petitioner contends that the eavesdropping was for the purpose of obtaining admissions from him in violation of his Fifth Amendment rights. The respondent admits that the affidavits which Lieutenant Frank Weldon submitted in support of his application for the warrants failed to set forth sufficient facts comprising probable cause. The State Attorney General argues, however, that the requisite facts were orally placed before the judges who issued the orders in the form of sworn information supplied by Lieutenant Weldon and Detective Nicholas Savino, (the latter was a witness before this Court at the hearings held herein). Moreover, the respondent maintains that the oral information which was before the magistrate who issued an eavesdropping order is admissible regardless of whether the magistrate made a record of the information. Furthermore, the State Attorney General contends that even if there were no, probable cause to support the eavesdropping, the admission of statements at trial overheard through the use of the “bugs” was, at most, harmless error. (a) Probable cause to issue eavesdropping orders Both Judge Schultz, the magistrate who issued the first two eavesdropping orders, and the affiant who applied for the orders, Lieutenant Weldon, are deceased. Justice McCaffrey [formerly Judge McCaffrey] was called as a witness by petitioner and testified that he did not recall the application for the order which he issued on October 23, 1959, and that it was his general practice to interview an affiant only as to the truth of the facts set forth in his affidavits. However, Justice McCaffrey also testified that it was not uncommon for other officers to accompany an affiant, and that occasionally they were also examined. Detective Nicholas Savino' testified that he had accompanied Lieutenant Weldon when each of the three applications was made and that on each occasion the two officers were taken to the Judge’s Chambers and placed under oath. On June 25, 1959, according to Savino, Judge Schultz requested that he be given all the department’s information regarding the Linda Riss maiming ease and the reasons the police wanted the order. Weldon or Savino then told the Judge the following: Miss Riss had told Savino in a statement made only a day or two after the assault [on June 16, or 17, 1959] and while she was still confined to a hospital bed, that she had met and began dating the petitioner in 1957. She subsequently broke off her relationship with Mr. Pugach in the latter part of that year when she learned from an attorney that petitioner was still married and that the divorce papers which he showed her were fraudulent or forged. Petitioner and Miss Riss resumed their relationship after Pugach promised to obtain a genuine divorce, and the couple saw each other until 1958, when their dating was again disrupted. Miss Riss had also told Detective Savino that petitioner began calling her at home, attempting to arrange to see her and having failed, he made threatening phone calls. She told the police that on one occasion Pugach threatened that if he could not have her, no one was to have her, and he knew people who would “take care of” her. On another occasion, petitioner, according to Miss Riss, offered her the options of either marrying him, going to bed with him and then being left alone or having the same thing happen to her that happened to Victor Reisel. Weldon or Savino also told Judge Schultz that near the end of 1958, Miss Riss received a package of narcotics through the mail, about which the police and postal authorities had been “tipped off” by an informer. Miss Riss had claimed it was petitioner who had caused the package to be sent to her. Miss Riss obtained two criminal court summonses against Pugach, the second of which had been served. She called the police to complain that a metal object was thrown through her window, smashing it; and she attributed this offense to petitioner. Miss Riss also had told the police that one, Sue Eden, had phoned her and revealed that Pugach had sought Eden’s assistance to locate someone who might beat up or harm Linda. Eden, according to Miss Riss, said she had found one Joe Finelle for the job, but a deal with him did not eventuate. Eden warned Linda to be careful, telling her that petitioner was dangerous and owned a weapon. Detective Savino had met with Sue Eden' on the 16th or 17th of June, 1959, and she confirmed the information Miss Riss gave to the police. All of the foregoing data was placed before Judge Schultz in connection with obtaining the first eavesdrop order of June 25, 1959. According to Savino, when the police appeared a second time before Judge Schultz on August 17, 1959, to obtain an extension of the order, the Court asked what, if anything, had been accomplished by the eavesdropping. After both officers were again placed under oath, Weldon replied that the police had overheard conversations in which two other suspects telephoned petitioner’s office and identified themselves. The officers evidently wished to continue the eavesdropping in order to obtain information concerning visits of various suspects to petitioner’s office and what they might say relating to the case under investigation. Lieutenant Weldon also told Judge Schultz that the police had questioned Joe Finelle, and Finelle had verified Sue Eden’s story and admitted having communicated with Pugach concerning such a proposition. Detective Savino testified that when the police sought a second extension of the eavesdrop order on October 23, 1959, Lieutenant Weldon and Detective Savino appeared before Judge McCaffrey, and under oath one of the officers repeated substantially the same information as is set out above and added thereto a report of the progress made in securing evidence through the bugging. Weldon or Savino told the judge that all three of the other suspects in the case had been seen in and around Mr. Pugach’s office during the previous two months, and two of them had had conversations with petitioner. The officers told Judge McCaffrey that two police informants had been sent to Pugach’s office to elicit information and also told the judge what occurred. They further informed the judge that petitioner possessed a rifle on the premises. The petitioner developed from Savino’s testimony the fact that with the exception of having interviewed Sue Eden and Joe Finelle, Detective Savino had not personally checked out any aspect of Miss Riss’ story. Savino did point out that Lieutenant Weldon, not he, was in charge of the investigation, and that many other officers were involved in verifying the facts of Miss Riss’ story. Detective Savino identified the source of the Department’s information that petitioner had a rifle as one, Police Patrolman Billy Price, a friend of Pugach who, on occasion, used office space in the Pugach suite. Linda Riss, called as a witness by petitioner, corroborated Savino’s testimony. She confirmed that she had related the facts to Savino and to Lieutenant Weldon just as Savino had testified. Petitioner’s own testimony denied the substance of much of the information imparted to the two judges, and specifically contradicted Miss Riss’ testimony about the existence of a fraudulent divorce, the making of threats, and petitioner’s complicity in either the window-breaking or narcotics mailing incidents. Mr. Pugach attempted to discredit Sue Eden as the mother of an illegitimate child and a prostitute and charged that Eden was motivated by jealousy of Miss Riss. Furthermore, Pugach vigorously attacked Detective Savino’s testimony herein as a recent fabrication and attempted to show that the officer’s statements must have been perjurious. Petitioner elicited from Savino the fact that the officer did not volunteer to the Attorney General or Bronx District Attorney his knowledge of the probable cause showing made in support of the eavesdropping orders until September 15, 1969. Mr. Pugach then established that on both September 3 and 11, 1969, the Bronx District Attorney answered “ready” to a calendar call, indicating his ability to proceed with a similar New York hearing. In that hearing the State also relied in large measure on Detective Savino’s testimony to prove that a showing of probable cause had been made to obtain wiretap orders from the same judges. Moreover, the probable cause showing for the eavesdropping and wiretapping orders was virtually the same. However, evidence elicited by the petitioner from Bronx Assistant District Attorney David S. Blatt explained that the District Attorney’s office planned to go forward on aspects of the state hearing relating to prejudicial publicity. He further disclosed that the District Attorney was prepared to show that unlawful wiretapping did not taint the conviction even assuming that the underlying affidavits for the wiretapping orders were insufficient to show probable cause. Assistant District Attorney Arnold Kideckel, in charge of the Appeals Bureau of the office, testified that he had learned in an April, 1969, conversation with Assistant District Attorney Alexander Scheer, the prosecutor in the Riss maiming case, that another officer besides the deceased Lieutenant Weldon had appeared before Judge Schultz to obtain the orders. Scheer, however, was unable in April to recall the other officer’s identity. It was this information, apparently, which sparked the search for Detective Savino, who was then presented as a witness in both the Bronx County and these federal court hearings. It is evident that this was a late discovery of important testimony. However, this circumstance is not improbable considering that these were the first times that hearings were ordered. There is no factual basis for the petitioner’s accusation that there was perjury or wilful fabrication on the part of all these public officials and officers. Having also had an opportunity to observe and evaluate the demeanor of all the witnesses on the stand, the Court finds from all the evidence that the testimony of Detective Savino and Linda Riss is credible and plausible, and rejects petitioner’s testimony and conjectures. The Court finds that sufficient information was communicated by Lieutenant Weldon and Detective Savino to Judges Schultz and McCaffrey supplementing the affidavits herein to show probable cause for the issuance of the eavesdropping orders. The Court notes that whatever may be the value of the evidence as to the window-breaking and narcotics-mailing incidents, the judges who issued the eavesdropping orders were entitled to rely at least upon the victim’s recitation of threats made against her by the petitioner, particularly when one of the threats — that the same thing which happened to Victor Reisel would happen to her — so closely paralleled the unusual mode of maiming. Furthermore, the magistrates were entitled to rely on the report of the conversation which Linda Riss recited as had with Sue Eden, since Miss Eden confirmed the story to Savino prior to the entry of any order. Moreover, before the entry of the second order, Mr. Finelle also confirmed the report of his involvement in the Riss matter. In Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed. 2d 1040 (1967) the Supreme Court reaffirmed that “probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed.” Furthermore, Berger, established that the required belief is that a particular offense has been or is being committed. 388 U.S. at 58, 87 S.Ct. 1873. In addition, for the issuance of a valid “search” warrant there must be probable basis for the belief that what is sought to be seized will be discovered at the premises to be searched. Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825,11 L.Ed.2d 887 (1964). The affiants must recount “underlying circumstances” which will enable the magistrate to make a “neutral” and “detached” inference of the existence of probable cause, United States ex rel. De Rosa v. LaVallee, 406 F.2d 807, 808 (2d Cir. 1969), cert. denied, 396 U.S. 854, 90 S.Ct. 115, 24 L.Ed. 2d 103 (1969); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). However, an affidavit or a sworn oral showing of probable cause is not to be deemed insufficient because it sets out the observations of another, rather than of the affiant, so long as a substantial basis for crediting the hearsay is presented. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1969). In the instant case, the judges had a substantial basis for crediting the victim’s recitation of petitioner’s threats against her and his efforts to enlist Miss Eden’s connivance in doing the victim harm. A sufficient recitation of the underlying circumstances was made by the two police officers under oath to give the judges a substantial basis for making neutral and detached determinations of probable cause. Probable cause existed to believe that, the particular offense of maiming had been committed at the instigation, or at least with the complicity of petitioner and there was probable cause to believe that inculpatory information concerning the case would be discovered by eavesdropping upon his visitors and office. The Court is mindful in this regard of the admonition in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949) that, In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. (b) Recording of probable cause shown The Court agrees with respondent that the Fourth Amendment does not require that a record be kept of facts told a magistrate which constitute probable cause to issue a warrant for eavesdropping. Petitioner’s reliance on Matter of Sarisohn, 21 N.Y.2d 36, 286 N.Y.S.2d 255, 233 N.E.2d 276 (1967), is misplaced. That decision was explicitly premised on the amendment to § 794 of the N.Y. Code of Criminal Procedure (McKinney’s Supp. 1969) added on July 1, 1962, which provides that affidavits in support of warrants “shall contain the statements and information upon which such person relies to establish sufficient grounds for the issuance of the warrant.” See New York ex rel. Pugach v. Mancusi (Bronx County Sup. Ct. filed Nov. 13, 1969), N.Y. Law Journal, November 18, 1969. It may well be, as petitioner has argued, that New York was endeavoring to give effect to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in amending § 794. However, we are not governed on the constitutional issue by a determination of the New York legislature as to what administrative procedures would insure the protection of Fourth Amendment rights. Respondent points to the Second Circuit’s remand order as implied authority for the competency of evidence of unrecorded testimony supplied to the issuing magistrates to establish probable cause for the issuance of an eavesdrop order. See United States ex rel. Pugach v. Mancusi, 411 F.2d 177, 180 (2d Cir. 1969) 96 U.S. 889 (1969), 90 S.Ct. 172, 24 L.Ed.2d 163. Respondent also calls to the Court’s attention United States ex rel. Schnitzler v. Follette, 379 F.2d 846, 848 (2d Cir. 1967), where an apparently unrecorded oral statement to the judge who issued a search warrant was deemed sufficient to supplement an affidavit insufficient on its face to show probable cause. See also, in this regard, Aguilar v. Texas, 378 U.S. 108, 109, n. 1, 84 S.Ct. 1509 (1964); Miller v. Sigler, 353 F.2d 424, 426 (8th Cir. 1965), cert. denied, 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966). However, the Court does not rely solely on these cases, which do not confront the issue squarely. In Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966), the Court addressed itself to the issue. Distinguishing federal cases based on Rule 41(c) of the Fed.R.Crim.P., which hold that probable cause must be determined exclusively on the contents of the affidavit for the warrant, the Court noted that Rule 41(e) is only a procedural prescription as to the issuance of warrants by the federal courts. On substantive aspect, to which it is necessary here for appellants’ contention to reach, the Fourth Amendment contains no prescription as to the form or manner in which probable cause must be shown, but merely provides generally that * * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * •» * 368 F.2d 1, at 4. The Court went on to state that it has sanctioned the use of sworn testimony taken before a magistrate prior to the issuance of a warrant as “a valid basis for the demonstration of probable cause in the issuance of a state warrant, and as not in this respect contravening the Fourth Amendment.” 368 F.2d 1, at 4. The Court agrees with the Eighth Circuit and holds that a showing of probable cause is all that the language or spirit of the Fourth Amendment requires, regardless of whether written or oral, part of an affidavit or other document, recorded or not. The Court has already found Detective Savino’s testimony credible and has accepted it as substantially the fact. Accordingly, the Court concludes that petitioner’s objections to the admission of Savino’s testimony at the hearings held herein must be overruled as a matter of law, and furthermore holds that no constitutional barrier exists to using the officer’s testimony to supplement the affidavits herein. (c) Particularity of warrants and duration of search period Petitioner also contends that the eavesdropping warrants lack the particularity demanded by the Fourth Amendment and permit eavesdropping of unreasonable duration. Mr. Pugach submits that the warrants are particularly deficient in naming the defendant as “John Doe.” And he maintains that no showing was made as to why six months of eavesdropping were required. Respondent did not reply to the particularity argument, but asserted that the duration of the eavesdropping presents no problems since renewal orders were obtained. The eavesdropping warrants in question identified the “place to be searched,” as “Room No. 812, in premises No. 349 East 149th Street, Bronx County.” Petitioner has testified, and the State has not denied, that “Room No. 812” was in fact a suite of rooms, housing Mr. Pugach and his two law partners, two associates who wei’e also attorneys, another attorney and an assistant district attorney who was not affiliated with petitioner; the suite also included the desks of four secretaries. Thus, it must be conceded that the warrants failed to indicate precisely whose conversations were to be overheard. The Court, however, is aware of the practical factors, including the need for secrecy, which at this time and place militated against an overparticularization in the warrant of the premises to be searched or the parties whose conversations were to be overheard. As for the duration of the eavesdropping, the Court notes that separate showings of probable cause were made prior to the granting of the two extension orders. Part of the showing prior to the granting of the second extension order was that two suspects had telephoned petitioner. We may reasonably infer that the second eavesdropping period was undertaken with the purpose of overhearing additional contacts between the various suspects. Prior to the granting of the third extension, the police indicated that yet a third suspect had been seen in the vicinity of petitioner’s office and that police agents had been sent to his office. The third extension order, evidently, was for the purpose of overhearing contacts with the third suspect as well as with the first two — and also to permit the overhearing of Mr. Pugach’s conversations with the police informants. Under all the facts and circumstances, the six months of eavesdropping was not a period of unreasonable duration. Mindful of the reasons for the duration and nonparticularization of the warrants herein, the Court might nevertheless feel constrained to hold the warrants violative of the petitioner’s Fourth Amendment rights under the holding of Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). However, the particularity and durational requirements embodied in Berger do not apply retroactively to the case at hand. Unlike the probable cause requirement propounded in Berger which the Second Circuit deemed foreseeable from Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed. 2d 734 (1961), cf. United States ex rel. Pugach v. Mancusi, 411 F.2d 177, 179 (2d Cir. 1969), cert. denied, 396 U.S. 889, 90 S.Ct. 172, 24 L.Ed.2d 163 (1969), the Berger requirement that the “ ‘property’ sought, the conversations, be particularly described,” 388 U.S. 41, 58-59, 87 S.Ct. 1873, 1883, and the requirements militating against eavesdropping of long duration — including the requirements of prompt execution, termination when the sought information is seized, and a return on the warrant, 388 U.S. 41, 59-60, 87 S.Ct. 1873, could not be prognosticated from the previous case law development. In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), the Supreme Court applied the retroactivity requirements enumerated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), to the Supreme Court’s holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and held that Katz has prospective operation only, to the extent that it departs from previous holdings. While the Court recognizes that Desist dealt only with non-trespassory eavesdropping and is not binding precedent for dealing with the trespassory eavesdropping involved herein, see United States ex rel. Pugach v. Mancusi, 411 F.2d 177, 179-180 (2d Cir. 1969), cert. denied, 396 U.S. 889, 90 S.Ct. 172 (1969), the Court nevertheless finds its reasoning persuasive and concludes that the particularity and durational requirements spelled out in Berger should similarly have prospective operation only. As the Supreme Court indicated in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the retrospective application of new constitutional rules affecting criminal trials is not a matter of constitutional compulsion. Whether such decisions shall be applied retroactively or prospectively only is a function of three factors: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970 (1967) (holding that United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) have prospective application only). The purpose to be served by the particularity and durational requirements of Berger was to carefully circumscribe eavesdropping procedures so that unauthorized invasions of “the sanctity of a man's home and the privacies of life” are prevented, and, specifically, to avoid the seizing of one thing under a warrant describing another. Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 1883 (1967), quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Two things should be noted in this regard: Firstly, that the allegedly offensive eavesdropping has already occurred, and will not be corrected by releasing the prisoner involved. Cf. Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731 (1965). And secondly, that the requirements in question, unlike other rules accorded retroactive effect, do not bear on the relevance or reliability of the evidence seized or on the fairness of the trial itself, but rather are merely designed to enforce federal law. See Desist v. United States, 394 U.S. 244, 250, 89 S.Ct. 1030 (1969); Fuller v. Alaska, 393 U.S. 80, 81, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968). In short, giving the particularity and durational requirements of Berger retroactive effect would serve no justifiable purpose. As for the reliance by law enforcement authorities and the effect on the administration of justice of retroactivity, it should be noted that these factors also weigh against retrospective application. The statute which Berger invalidated was first added to New York’s Code of Criminal Procedure in 1942, N.Y.Code of Cr.Pro. § 813-a (McKinney’s 1958), added L.1942, c. 924, and undoubtedly a substantial number of convictions were obtained in reliance on the validity of the statute. Furthermore, as the Supreme Court has noted, the determination of whether a particular instance of eavesdropping led to the introduction of tainted evidence at trial would in most cases be a difficult and time-consuming task, which, particularly when attempted long after the event, would impose a weighty burden on any court. Desist v. United States, 394 U.S. 244, 251, 89 S.Ct. 1030, 1035 (1969). Accordingly, the Court concludes that the standards of Berger are not applicable, and that the warrants herein were sufficiently . descriptive and the eavesdropping, of reasonable duration. Petitioner’s Fourth Amendment rights were not transgressed. (d) Eavesdropping as violative of Fifth Amendment The prosecutor, Bronx Assistant District Attorney Alexander Seheer, testified on the hearing that his office had sought eavesdropping orders to overhear “any statement you [Pugaeh] make in connection with this incident” and “[a]ny statements that you may make that would be incriminating.” Petitioner has argued that eavesdropping for the purpose of obtaining admissions violates the Fifth Amendment. This contention is without merit. As a threshold matter it may be assumed that inculpatory statements of suspects are almost always the conversations sought to be overheard. If petitioner is correct that eavesdropping to obtain admissions violates the Fifth Amendment, then eavesdropping orders consonant with the Fifth Amendment are propably impossible. Mr. Justice Douglas, concurring, in Berger v. New York, 388 U.S. 41, 64-68, 87 S.Ct. 1873, 1886-1888 (1967) was of the view that whenever the accused is the “unwilling source of the evidence,” use of that evidence violates the Fifth Amendment. This view was not adopted by the majority of the Court in Berger. The Supreme Court’s earlier abandonment of the “mere evidence” rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) seems to undercut the view expressed by Mr. Justice Douglas’ concurrence and requires the rejection of the proposition that eavesdropping for the purpose of overhearing inculpatory statements is constitutionally objectionable. The element of compulsion is at the core of the constitutional stricture, “nor shall [the accused] be compelled in any criminal ease to be a witness against himself.” (Emphasis supplied). See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Hoffa v. United States, 385 U.S. 293, 303-304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Certainly, eavesdropping of conversations made not in custody, but in the privacy of one’s office involves none of the “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 384 U.S. 436, 467, 86 S.Ct. 1602, 1624. The constitutional danger in eavesdropping is one of the invasions of a person’s privacy, not compulsion to incriminate oneself. If the government had placed an informer in petitioner’s office for the express purpose of overhearing inculpatory statements made by the petitioner, and if the informer later testified to the contents of such statements, the accused could not complain that his privilege against self-incrimination had been transgressed. Hoffa v. United States, 385 U.S. at 303-304, 87 S.Ct. 408. It is difficult to discern how the planting of microphones rather than informants is distinguishable for Fifth Amendment purposes. In each case the declarant is unaware of the use to be made of his statements; in each the suspect is the unwitting source of evidence. In both cases the inculpatory statements are voluntarily made without threats, force or compelling pressures. Petitioner’s argument is untenable. The Court, therefore, holds that the use of information obtained by eavesdropping against the petitioner was not violative of his rights under either the Fourth or Fifth Amendments. In view of the Court’s findings and conclusions on the merits of the eavesdropping claims, it is unnecessary to reach the question of whether evidence so obtained if unlawfully admitted would be harmless error. It should be noted in this connection however, that the petitioner has repeatedly challenged the State to apprise him of how the police solved the crime. He claims that this was accomplished only through use of illegal means. In this record, he expressly disclaims any legal criticism of wiretapping of his conversations. He said: “There is no wiretapping involved here ... I haven’t raised any issue of wiretapping.” He does as we have seen, challenge the legality of the eavesdropping as trespassory conduct in violation of his constitutional rights. If the issue of eavesdropping be deemed not resolved by the rulings above, the record nonetheless gives ample indication that well before any eavesdropping, indeed from shortly after the time of the assault, the police reasonably and correctly suspected the connection of Pugach therewith. While he stoutly denied any connection to the crime in his talks with the police informants and for the benefit of the unknown eavesdroppers, his accomplices were voluntarily confessing. Two of them eventually pleaded guilty and the third was tried and convicted. The information garnered from eavesdropping and police informants was at best merely cumulative and “played a small part in an overwhelmingly strong record which contained many other similar admissions made by the defendant.” People v. McCall, 17 N.Y.2d 152, 159-60, 269 N.Y.S.2d 396, 403, 216 N.E.2d 570, 574 (1966). That appraisal is amply vindicated by the record before this Court. The case against Pugach was not woven from circumstantial evidence. The evidence was overwhelming; and error if any here, was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L. Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). II. COERCED ADMISSIONS. CLAIMS Petitioner claims that the use in evidence of admissions made by him to two police operatives violated his rights. He contends that any admissions were the fruit of an unlawful entry into his office and automobile in violation of the Fourth Amendment. Moreover, he maintains that admissions were obtained by the police agents as the result of blackmail, and hence were in violation of his Fifth Amendment rights. The state responds that petitioner has at times denied that any admissions were made to said police operatives and cannot object to the involuntary nature of statements, the existence of which he denies. Furthermore, the state answers that the use of agents to test petitioner’s reactions was not tantamount to coercion, but merely a strategem or subterfuge which did not violate petitioner’s rights. Petitioner anticipates and refutes the notion that the testimony was harmless error or that he waived the issue, citing his attorney’s vigorous cross-examination on the issue, the corroborating testimony by his co-defendant, Harden, as to the existence of coercion and the trial court’s allegedly erroneous charge, which petitioner asserts removed the issue of voluntariness from the jury’s consideration. Both of the police agents, Messrs. Mac Alan Gladding and Jose Monteiro, testified on the hearings as to the conversations which were the source of admissions used against petitioner at the trial. The petitioner gave his version of these conversations. A contemporaneous summary of notes taken by a police officer who was overhearing the earlier conversation over an eavesdropping device was admitted into evidence on the hearings. Furthermore, the Court has carefully examined petitioner’s trial transcript in respect of the testimony in issue. Having heard all the witnesses and observed their demeanor on the witness stand and having examined all the evidence herein, the Court finds that the two conversations which were the source of admissions testified to by the prosecution witnesses occurred substantially as follows: During the latter part of September, 1959, the efforts of Gladding and Monteiro, two former convicts (the “two” hereafter), were enlisted by the police to elicit information from various persons believed to be involved in the Linda Riss maiming case. The two had for a time been suspects in the case and had even been taken to the hospital where the victim was being treated, for the purpose of identification. The two procured Joe Raso (Joe Rowe) an acquaintance of the petitioner, to arrange a meeting for them with Pugach at his office. Around noon on Monday, September 28, 1959, Raso (or Rowe) brought Gladding and Monteiro to petitioner’s office and introduced them as his friends to Pugach. Rowe then left the office. The two told petitioner that they had been arrested and beaten by the police in connection with the Linda Riss case, and intimated that they knew that petitioner had hired the assailant. They dropped the names of others involved in the case, and mentioned evidentiary details suggesting an intimate knowledge of petitioner’s complicity. They demanded $10,000 and threatened to tell all they knew to the police if not paid. Pugach flatly denied any connection with the case and told the men to leave his office and threatened to call the police. However, the two coolly offered to wait for the police. Pugach then resumed the conversation. Petitioner said that there had been much publicity to the case and any suggestion that he might be connected therewith would be injurious to him professionally and while denying any complicity, he made an offer of $300 to them, under the guise of avoiding injurious publicity. His posture and perspiration tended to manifest a sense of nervousness. The $300 was unacceptable to the two. Petitioner then requested time to think over the matter, and said he would communicate with them and asked for their phone number. They declined this information but agreed to give Pugach time to think over their demand and said they would call petitioner at a later time of their choosing. A second conversation occurred in petitioner’s automobile on October 6 at about 6:30 or 7:00 P.M. while petitioner was stopped at a red light not far from his office. Messrs. Gladding and Monteiro, together with Heard Harden, had been following petitioner's convertible in another car, and when Pugach stopped at a traffic signal at the corner of Morris Avenue and 161st or 162nd Street, Glad-ding got out of the latter auto and called to petitioner. Petitioner signalled to Gladding to enter and pulled his vehicle near the row of parked cars, double parking and leaving the engine running. Gladding again demanded payment of $10,000 to remain silent, and Pugach asked for assurance that he would not be approached in the future. Pugach was concerned about the effectiveness of any arrangement with the two. Pugach then inquired as to the cost of having Mc-Millian, Newkirk and Harden put out of the way. Gladding quoted him a price of $15,000 in addition to the $10,000 previously mentioned. Petitioner said he deemed the price unduly expensive. Pugach then demanded assurances that Gladding in fact possessed incriminating information. Gladding mentioned phone calls which Pugach had received from his co-conspirators and he also offered to prove he knew Harden. He motioned to the car behind and Harden emerged and began approaching Pugach’s car. Petitioner reacted violently; he jammed his foot on the accelerator, the car shot ahead and collided with other vehicles in the block. Petitioner was cut and bruised and Gladding was rendered unconscious. Petitioner was taken to the hospital and Gladding was arrested and handcuffed. Petitioner’s version of the two incidents was at odds with that testified to at the trial by the two. He claims that the first conversation was replete with specific threats of violence, including the threat of throwing petitioner out of the window. During the second conversation, as petitioner would have it, Gladding struck Pugach and struggled with him prior to the auto accident. At the hearings held herein, however, Glad-ding and Monteiro specifically denied using violence or threats thereof and their testimony appeared credible and corroborated by the circumstances and probabilities. The contemporaneous summary of the eavesdropping of the first conversation supports the version of the two police agents in every particular. Accordingly, the Court disbelieves petitioner and specifically finds that no violence was visited against petitioner by police agents and that the only threat herein was the threat of telling information to the police. Furthermore, the Court specifically finds that the entry into petitioner’s automobile at the time of the second conversation was upon the invitation and consent of petitioner — that Gladding did not climb or vault into the car unbidden as petitioner has contended. For this reason, the Court need only discuss the question of whether admissions were incident to an unlawful entry, in terms of the initial conversation that occurred in petitioner’s office in September, 1959. The Court finds in this regard that the initial entry into petitioner’s law office was with the consent of petitioner by appointment made through Pugach’s friend, Joe Raso or Joe Rowe. During the conversation, petitioner at one point did order Gladding and Monteiro to leave or he would call the police. Gladding and Monteiro offered to wait for the police. The petitioner decided not to make the call and he resumed the conversation and inculpatory statements were made. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court held that verbal statements which derive so immediately from an unlawful entry and an unauthorized arrest as to be deemed the “fruit” of official illegality, must be excluded from evidence as in derogation of the Fourth Amendment. To the government’s argument in Wong Sun that the defendant Toy’s statements made in his bedroom subsequent to an unlawful invasion were not the result of the unlawful entry and arrest, but rather of an intervening volitional act by the defendant, the Supreme Court replied: This contention * * * takes insufficient account of the circumstances. Six or seven officers had broken the door and followed on Toy’s heels into the bedroom where his wife and child were sleeping. He had been almost immediately handcuffed and arrested. Under such circumstances it is unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion. 371 U.S. 471, at 486, 83 S.Ct. 407, at 416. The standard articulated in Wong Sun for judging what must be excluded as poisonous “fruit” 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 sufficiently distinguishable to be purged of the primary taint.” 371 U.S. 471, at 488, 83 S.Ct. 407, at 417. In this case the official illegality was low-grade, if any occurred at all. It consisted not of an unlawful entry or arrest, but of refusing to leave when told to do so. Indeed, the fact that petitioner continued the conversation after the agents’ refusal to depart was a plainly implied consent that the two remain. In any event, in the Court’s opinion, the admissions were not the fruit of trespassing, but of the agents’ representation that they would inform the police of information incriminating the petitioner. The admissions, thus, were not obtained by the exploitation of official trespassing, but by means sufficiently distinguishable to be purged of the taint of trespassing. It remains to be considered, however, whether the admission into evidence of petitioner’s statements may be deemed violative of the Fifth Amendment because involuntary, or of the Fourteenth Amendment because the police employed an unconscionable stratagem. The only federal cases found which have considered the issue have treated tacit and oral admissions precisely as they have treated confessions for the purpose of determining voluntariness under applicable constitutional standards and procedures. See United States ex rel. Gomino v. Maroney, 231 F.Supp. 154 (W.D.Pa.1964) (tacit admission by silence in face of accusation); United States ex rel. Sehompert v. LaVallee, 238 F.Supp. 265, 266 (N.D.N.Y.1965) (spontaneous oral admission to police in bar and grill). This Court elects to do the same. It is clear that in considering cases arising before Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the “nonretroactivity of the decision in Miranda does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo * * Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966). Davis states the rule that the Court is to consider the “totality of circumstances” in determining whether a confession (or admission) was voluntarily given or the result of police overbearing, and that the giving of Miranda warnings — while not conclusive — is a significant factor. The pre-Escobedo cases are notable for their acute attention to the particular facts and circumstances involved in each. Among the factors considered were the race, intelligence and education of the accused; the length and conditions of detention; the age of the accused; the length of interrogation (if any); deprivation of contact with relatives, friends and attorneys; the employment of physical brutality or unconscionable means of deception; and the health and state of intoxication of the accused. See, e. g., confessions held involuntarily given: Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (mentally dull 19-year-old Negro held incommunicado without food, warnings or prompt arraignment and under threat); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960) (accused insane or incompetent, sustained interrogation, and surrounded by hostile police) ; Beeher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967) (under gunpoint threat and while wounded and under medication); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed. 2d 1265 (1959) (foreign-born 25-year-old with junior high school education subjected to eight hours continuous questioning with sympathy falsely aroused) ; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954) (elicited by state psychiatrist versed in hypnosis who employed threats and promises subsequent to many hours of police questioning). But, see for a holding of voluntariness, Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958) (college-educated man with law training, 14 hours in custody without consulting attorney). In the instant case, petitioner has established that the two police agents employed the threat of telling incriminating information to the police in order to elicit inculpatory statements. Petitioner also may point to the failure to give Miranda warnings prior to the conversations in question — these would obviously have been inconsistent with the ruse employed. On the other hand, neither of the conversations in question was of long duration. The subject involved, was a highly educated, successful, resourceful, quick-minded lawyer with a wide legal practise and exposure to all sorts of people in business and legal matters, sitting in his own law office during business hours and with unimpeded access to channels of communication and any person he might wish to call. He was under no restraint nor in anyone’s custody. He was free to do as he pleased. No violence or threats of violence were involved. And the only thing which petitioner need fear was that Messrs. Gladding and Monteiro would tell to the police all of what they said they knew about a crime — an act which can hardly be classed as illegal or improper coercion and one which citizens have a du