Petition — Hall v. Georgia

Supreme Court, U. 4

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IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States:

October Term 1976

Number 76-66

PAT HALL

and

BOBBY JAMES LAWSON

Petitioners

-vs-

STATE OF GEORGIA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF GEORGIA

HERBERT SHAFER

Attorney for Petitioners

620 Peachtree Street, N.E.

Mezzanine Level

Atlanta, Georgia 30308

Tel: (404) 881-0607

BERNARD H. DEMPSEY, JR.

Attorney for Petitioners

Suite 704, Pan American Bank Bldg

250 North Orange Avenue

Orlando, Florida 32801

Tel: (305) 422-5166

INDEX

} Page

OPINION BELOW _... —

JURISDICTION ... 2

QUESTION PRESENTED FOR REVIEWe___. 2

CONSTITUTIONAL PROVISION INVOLVED... 2

STATEMENT OF THE CASE 2

The Georgia Law is Facially Insufficient

and Hence Provides No Ligitimation

for any Wiretap. __._..

Pre-emption

Other Investigative Techniques

Previous Applications -__..

Other Offenses iia

Notice

The Effect of the Georgia Law... —_ =.

(oo > ee) ee ~ e 2

II Seeveneiciistr's, <uscinsiatebesetiansseitcheipittindainide 9

CITATIONS

Page

CASES:

Berger v. New York, 388 U.S. 41 (1967) 4,8

Katz v. United States, 389 U.S. 347 (1967)... 8

Osborn v. United States, 385 U.S. 323 (1966). 8

United States v. Thomas, 489 F. 2d 664

(5th Cir. 1973). 6

Wong Sun v. United States, 371 U.S. 471

481-482 (1963) ___. 8

CONSTITUTIONAL PROVISIONS:

Amendment IV _.... cain APS

STATUTES:

Ga. Code § 26-2706 _.__. ‘ai 1

es ae ID chi 3, 4, 6, 7

Ga. Laws 1968, pp. 1249, 1328;

SI I I a reesciepeemctesnmanminn 2

18 U.S.C. §§ 2510-2520 8 4 5 7

28 U.S.C. § 1257 _.__... : 2

OTHER AUTHORITY:

Senate Report No. 1097, U.S. Code Cong. &

Adm. News, p. 2187 (1968)... 3

ii

Supreme Court of the United States

October Term 1976

Number

PAT HALL

BOBBY J alam LAWSON

Petitioners

STATE OF GEORGIA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF GEORGIA

The Petitioners herein pray that a Writ of Certiorari

issue to review the judgment of the Georgia Supreme

Court entered in the above-entitled case on April 20,

1976.

OPINION BELOW

A copy of the opinion of the Georgia Supreme Court

is annexed hereto as an appendix to this Petition.

The opinion of the Georgia Supreme Court affirmed

the convictions of the Petitioners for Communicating

Gambling Information in violation of Ga. Code § 26-2706.

1

2

JURISDICTION

The judgment of the Georgia Supreme Court was en-

tered on April 20, 1976. Jurisdiction of this Court is

invoked under 28 U.S.C. § 1257.

QUESTION PRESENTED FOR REVIEW

Does the failure of Georgia’s wiretap law (Ga. Laws

1968, pp. 1249, 1328; 1972 pp. 615, 952, 953) to conform

substantially to the federal wiretap law (18 U.S.C.

§ 2510-2520), invalidate any electronic surveillance con-

ducted thereunder, thus rendering Georgia’s wiretap

law facially deficient?

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT IV

The right of the people to be secure in their persons,

papers and effects against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be searched,

and the persons or things to be seized.

STATEMENT OF THE CASE

The Petitioners were arrested and charged with the

felony of Communicating Gambling Information.

The Petitioners made a Motion to Suppress based,

inter alia, on the unconstitutionality of the Georgia

Wiretap Law. That Motion was denied.

At the Petitioners’ trial, evidence obtained from the

wiretap was admitted over objection. The Petitioners

were convicted and each sentenced to five (5) years in

prison, together with a five thousand dollar ($5,000.00)

fine.

Because the issue involved the constitutionaiity of a

Georgia law, appeal was iaken directly to the Georgia

Supreme Court. The Court affirmed, and denied appli-

cation for rehearing on May 4, 1976.

THE GEORGIA WIRETAP LAW IS FACIALLY

INSUFFICIENT AND HENCE PROVIDES NO

LEGITIMATION FOR ANY WIRETAP.

The law which the Petitioners challenge is the Georgia

Wiretap Law (as amended), Ga. Laws 1968, pp. 1249,

1328; 1972 pp. 615, 952, 953. For convenience, that iaw is

referred to hereinafter as codified: Ga. Code § 26-3004.

PRE-EMPTION

In passing 18 U.S.C. §§ 2510-2520, Congress pre-

empted the area of wiretapping. Title 18 U.S.C. § 2516

(2) provides that states may pass eavesdropping laws,

but the legislative history requires them to be in sub-

stantial compliance with the federal law.

“No authorization may be permitted unless a specific

state statute permits it. The state statute must meet

the minimum standards reflected as a whole in the

proposed chapter. The proposed provision envisions

that states would be free to adopt more restrictive

legislation, or no legislation at all, but not less .

restrictive legislation ... .”

Senate Report No. 1097, U.S. Code Cony. & Adm.

News, p. 2187 (1968).

4

Superficially, the Georgia law appears substantially

to conform to Title II'. However, read more carefully,

and compared with the federal law, the cases, and the

Fourth Amendment, it is deficient.

While there are several areas of variation, four are of

substance.

1) Other Investigative Techniques.

Title 18 U.S.C. § 2518 (1) (c) requires:

“A full and complete statement as to whether or

not other investigative procedures have been tried

and failed or why they reasonably appear to be un-

likely to succeed if tried or to be too dangerous.”

[Emphasis added].

The Georgia law requires that a wiretap be under-

taken only on probable cause. It also requires exigencies

which “override the need for giving of notice of the

surveillance to the parties to be overheard... .” Ga.

Code § 26-3004 (d).

What it does not do is to require a finding that the

tap itself is necessary. There is nothing whatever in the

Georgia law to forbid a policeman with minimal prob-

able cause to conduct his investigation solely by wire-

tap.

The entire rationale behind Title III is that wire-

tapping contains such potential for abuse that its use

must be permitted only where absolutely necessary. As

Mr. Justice Clark stated in one of the landmark cases

in the area, Berger v. New York, 388 U.S. 41, 63 (1967):

“Few threats to liberty exist which are greater than

that posed by the use of eavesdropping devices.”

Except for a preliminary finding of “probable cause,”

however, the Georgia law permits the use of wiretap

as the initial step in an investigation, and requires no

justification for using this extreme step instead of con-

ventional techniques.

2) Previous Applications.

Title 18 U.S.C. § 2510 (1)(e) requires:

“A full and complete statement of the facts con-

cerning all previous applications known to the in-

dividual authorizing and making the application,

made to any judge for authorization to intercept...

communications involving any of the same per-

sons . . . specified in the application... .”

a

The importance of this requirement is set out in the

next paragraph. However, there is no similar require-

ment in the Georgia law.

The reason for this requirement is to insure full dis-

closure by the police. Since telephone communications

often involve several distinct (e.g., county and county)

or overlapping (e.g., federal and state) jurisdictions,

there often exist many judges from whom an application

could be sought. Under the federal law, a magistrate

has to know about earlier orders of authorization or of

denial. The Georgia law, however, permits a sort of

“magistrate shopping,” whereby an applicant can con-

tinue applying until he finds a friendly judge. He does

not have to make known to him earlier attempts by the

applicant or his colleagues to obtain permission to tap.

Nor does he have to make known the existence of earlier

wiretaps.

6

While this does not create the “lie to the issuing magis-

trate” condemned in United States v. Thomas, 489 F. 2d

664 (5th Cir. 1973), it does permit a less than candid

application.

In short, the Georgia law allows the police to make

continued applications, and have a chance of cbtaining

an order of authorization from a magistrate not fully

aware of all surrounding circumstances.

3) Other Offenses.

Title 18 U.S.C. § 2517 (5) provides:

“That when an investigative or law enforcement

officer, while engaged in intercepting wire or oral

communications relating to offenses other than those

specified in the order of authorization or approval,

the contents thereof, and evidence derived there-

from ... may be used under subsection (3) of this

section when authorized or approved by a judge of

competent jurisdiction where such judge finds on

subsequent application that the contents were other-

wise intercepted in accordance with this chapter.”

[Emphasis added].

Subsection (2) permits the use of intercepted conver-

sations in court proceedings.

The Georgia law is explicitly contrary to the federal

law in this respect. It provides that when an officer con-

ducting a tap obtains information of other crimes, that

evidence “may be disclosed or used in the same manner

as if a surveillance warrant covering said crimes had

initially been used.”’ Ga. Code § 26-3004 (g).

—

7

This situation, like (2) above, provides the police with

too much power. They are able to wiretap, and use the

evidence obtained almost indiscriminately. In particular,

they do not have to go back before a magistrate to show

that the wiretap was made in goud faith, that the second

crime was not actually the target initially, and again, in

short, that the magistrate was not misled

4) Notice.

Title 18 U.S.C. § 2518 (8)(d) requires that:

“Not later than ninety days after the filing of an ap-

plication for [a wiretap] which is denied or the

termination of the period of an order or extensions

thereof, the issuing or denying judge shall cause to

be served, on the persons named in the order or the

application . . . an inventory which shall include

notice of (1) the fact of the entry of the order or

the aplication; (2) the date of entry and the period

of authorized, approved or disapproved interception,

or the denial of the application; and (3) the fact

that during the period wire or oral communications

were or were not intercepted.”

The Georgia law (Ga. Code § 26-3004(5) does not re-

yuire any prompt notice. A person who is indicted or

accused is to be notified by the solicitor general that his

conversations have been intercepted. This procedure

leaves room for very great and improper invasions of

privacy.

First of all, a person may not be indicted for a year

or more after the tap. Yet the Georgia law allows the

interception to be used against him, even though he is

unaware of its existence until after indictment.

A corollary to the above is that a person who is not

indicted may never be aware that his privacy has been

invaded.

Finally, a person against whom an application is made

and denied has no right to notice under the Georgia law.

The Congress felt that an invasion or attempted in-

vasion of a person’s privacy is of such importance that

he is entitled to know about it. The Georgia legislature,

however, did not enact similar safeguards in iw law.

EFFECT OF THE GEORGIA LAW

The variance between the Georgia law and the federal

law is subtle, but very real. The federal law was passed

largely in response to three decisions of this Court:

Berger v. New York, supra; Katz v. United States, 389

U.S. 347 (1967); and Osborn v. United States, 385 U.S.

323 (1966). These cases, in turn, hinged on the Fourth

Amendment.

The great flaw in Georgia’s statute is that it provides

the police with too much possibility for abuse of the

very powerful, but potentially very dangerous, use of

wiretaps.

It is hard to summarize the entire thrust of this Brief

in one line. However, Mr. Justice Brennan’s language,

although in the context of arrests rather than searches,

comes very close. His warning is “that it is imperative

that the delibrate, impartial judgment of a judicial

officer . . . be interposed between the citizen and the

police....” Wong Sun v. United States, 371 U.S. 471

481-482 (1963).

ee ae

CONCLUSION

Your Petitioners believe that the Georgia wiretap

law is illegal. Accordingly, it is prayed that this Court

will grant a Writ of Certiorari so that they can present

further authority in support of their proposition.

Respectfully submitted,

/s/ HERBERT SHAFER

HERBERT SHAFER

Attorney for Petitioners

620 Peachtree St., N.E.

Mezzanine Level

Atlanta, Georgia 30308

Tel: (404) 881-0607

/s/ BERNARD H. DEMPSEY, JR.

BERNARD H. DEMPSEY, JR.

Attorney for Petitioners

Suite 704

Pan American Bank Bldg.

250 North Orange Avenue

Orlando, Florida 32801

Tel: (305) 422-5166

10

APPENDIX A

434

Supreme Court of Georgia Decided: Apr. 20, 1976

30939. LAWSON etal. v. THE STATE

UNDERCOFLER, Presiding Justice.

Appellants were convicted in a non-jury trial on

two counts of communicating gambling information.

Each appellant was sentenced to two five-years terms

to run concurrently. Certain evidence was obtained

under a telephone intercept order. This appeal asserts

that the trial court erred in refusing to suppress all

evidence derived from the telephone intercept order,

the admission of certain evidence, and the denial of

appellants’ motions for directed verdicts. The appeal

attacks also the constitutionality of Ga. L. 1968, pp.

1249, 1328 as amended, Ga. L. 1972, p. 615, and Ga. L.

1972, pp. 952, 953 (Code Ann. §26-3004) because it

fails to meet the requirements set out by the United

States Congress in 18 USC §§ 2510-2520.

The telephone intercept order was issued on Septem-

ber 23, 1974, by a judge of the superior court upon the

affidavit of an agent of the Georgia Bureau of Investi-

gation. The order authorized the interception of com-

munications over two telephones for a 20 day period.

The wiretap began on September 24, 1974, and termin-

ated on September 26, 1974. Thereafter the judge issued

two search warrants based upon the intercepted com-

munications. HELD:

1. Appeallants contend the intercepted communica-

tions should have been suppressed because the State

failed to comply with the “necessity” requirements of

en

11

18 USC § 2518 (1) (c) and § 2518 (3) (c). These sec-

tions provide respectively that an application for an

order authorizing a telephone interception shall include,

“a full and complete statement as to whether or not

other investigative procedures have been tried and

failed or why they reasonably appear to be unlikely

to succeed if tried or to be too dangerous,” and,

“normal investigative procedures have been tried

and have failed or reasonably appear to be unlikely

to succeed if tried or to be too dangerous.” Appellants

argue that the statements in the GBI agent’s affidavit

as to necessity are stereotyped recitals and fail to

satisfy the statute. We do not agree. The affidavit shows

in detail a physical surveillance of the purported gamb-

ling establishment and of the defendants over a period

of two weeks prior to the issuance of the telephone in-

tercept order. The affiant shows from prior experience

that the full extent of an illegal gambling operation

as here, and the individuals involvement therein cannot

be obtained by normal investigative techniques. In our

opinion the trial court was authorized to rely upon

these representations. As stated in United States v.

Robertson, 504 F2d 289, 293 (3), “We first note that

§§ 2518 (1)(c) and (3)(c) must be read in a common

sense fashion. They are ‘simply designed to assure that

wiretapping is not resorted to in situations where trad-

itional investigative techniques would suffice to expose

the crime.’ United States v. Kahn, 1974, 415 U. S. 143,

153 n. 12, 94 SC 977, 983 n. 12, 39 LE2d 225, 236 n. 12.

Their purpose ‘is not to foreclose electronic surveillance

until every other imaginable method of investigation

has been unsuccessfully attempted, but simply to inform

the issuing judge of the difficulties involved in the use

12

of conventional techniques.’ United States v. Pacheco,

oth Cir. 1974, 489 F2d 554. The provisions contemplate

that ‘the showing be tested in a practical and common-

sense fashion.’ ”

2. Appellants contend there was an unauthorized

publication and disclosure of the contents of the com-

munications. obtained under the intercept order. It

argues that duplicated tapes of the intercept conversa-

tions were made in apparent disregard of the judge’s

order that such communications and the tapes thereof

were to be kept confidential and delivered to the

clerk of the court. We find no error. The record shows

that the judge who issued the telephone intercept

order approved the making of duplicate tapes and tran-

scripts thereof in order to comply with Federal and

State laws. See 18 USC § 2517 (1) and (2). The dupli-

cate tapes were given to a secretary to transcribe. The

duplicate tapes were then erased and the tapes delivered

to the judge who issued the intercept order. The judge

kept them in his personal possession until the hearing

on the motion to suppress when they were delivered

to the district attorney.

3. In our opinion the evidence shows that the officers

conducting the telephone interceptions did so in such

a way as to minimize the interception of communica-

tions not subject to the order. The record shows the

interceptions were terminated on a number of personal

and nonrelevant conversations. The interceptions were

authorized for a 20 day period, however, they were

terminated after two days.

4. The failure wo advise the judge issuing the tele-

phone intercept order of a previous interception in

eal

13

October 1973 was harmless. The judge was informed

of previous telephone intercepts but not specifically

this particular one.

5. We find no merit in appellants’ contentions that

the affidavit in support of the issuance of the telephone

intercept order contained false material representa-

tions. These contentions involve the credibility of wit-

nesses and the decision of the trial judge will not be

reversed.

6. Appellants content that Code Ann. § 26-3004 is

unconstitutional because it does not meet the minimum

standards of Title III of the Omnibus Crime Control

Act of 1968 (18 USC § 2510, et seq.). Appellants argue

that Code Ann. § 26-3004 omits the provision of 12

USC § 2518 (6) which states: “Whenever an order

authorizing interception is entered pursuant to this

chapter the order may require reports to be made to the

judge who issued the order showing what progress has

been made toward achievement of the authorized ob-

jective and the need for continued interception. Such

reports shall be made at such intervals as the judge

may require.” This provision is discretionary and not

mandatory. The fact that it is not included in the

Georgia statute does not render it unconstitutional or

in conflict with the federal provision.

7- Appellants have no standing to challenge the

Georgia statute because it does not provide that the

application for an intercept order contain a statement

as to the period of time the interception is required

to be maintained, that it must not be longer than

necessary to achieve the objective, that other investi-

gative procedures have failed, that the judge make a

14

finding that other investigative procedures have failed,

and require that the person named in the intercept

order be given reasonable notice thereof after the sur-

veillance. All of these requirements were complied

with and the appellants show no harm.

8. The trial court did not err in denying appellants’

motion for directed verdicts.

9. Evidence that a particular phone was registered

to one of the appellants was admissible. Code Ann.

§ 38-711.

10. During the hearing on the motion to suppress

appellant Hall admitted to being a lottery operator.

She claims this testimony was necessary to support

her motion to suppress. During the trial upon motion

by the district attorney the court took judicial notice

of her testimony that she was involved in lottery oper-

ations. Appellant Hall complains that this is a viola-

tion of her Fourth Amendment rights. See Simmons v.

United States, 390 U.S. 377 ( SC ; LE2d_ )

(1968). This case was tried by the judge without a jury

and the judge had already heard tue admission when

hearing the motion to surpress. Assuming but not de-

ciding that appellant Hall’s Fourth Amendment rights

were violated a review of the record convinces us that

any such violation was harmless beyond a reasonable

doubt.

Judgment affirmed. All the Justices concur.

15

CERTIFICATE OF SERVICE

This is to certify that three copies of the foregoing

Petition for a Writ of Certiorari to the Georgia Supreme

Court were mailed to:

Hon. Arthur K. Bolton

Attorney General

132 State Judicial Building

40 Capitol Square

Atlanta, Georgia 39334

and

Hon. Ben J. Miller

District Attorney

P.O. Box 307

Thomaston, Georgia 30286

with sufficient postage thereon to insure delivery by first

class mail.

This 14th day of July, 1976.

/s) HERBERT SHAFER

HERBERT SHAFER

Attorney for Petitioners

/s/ BERNARD H. DEMPSEY, JR.

BERNARD H. DEMPSEY, JR.

Attorney for Petitioners