Petition — Vitello v. Gaughan
Supreme Court brief1977
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In the -
Supreme Court of the United States.
Octroser TerM, 1976.
No. ' 76-1255
FRANCIS A. VITELLO,
PETITIONER,
vo.
CHARLES GAUGHAN,
SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL
INSTITUTION, BRIDGEWATER,
RESPONDENT.
Petition for a Writ of Certiorari to the United States Court
of Appeals for the First Circuit.
Francis J. DiMEnTo,
DiMento & SULLIVAN,
100 State Street,
Boston, Massachusetts 02109.
Attorneys for Petitioner.
BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.
—
Table of Contents.
Opinions below
Jurisdiction
Questions presented
Constitutional and statutory provisions involved
Statement of the case .
A.
aPO HF
The statutory framework
The May 10, 1972, wiretap application
The May 10 wiretap order
The suppression motion
The direct appeal
Petitioner's resort to federal habeas corpus
Reasons for granting the writ
I.
The decision below conflicts with the
mandate of Congress and this Court that
federal courts have and must exercise habeas
corpus jurisdiction to suppress wiretap evi-
dence seized in violation of the Fourth
Amendment pursuant to the suppression rule
Congress enacted in Title III
A. In specifying no time limits, the May 10
order constitutes a “general warrant”
facially void under the Fourth Amendment
B. The court below erred in holding that
Stone v. Powell, ___ US. , precludes
federal courts from exercising habeas juris-
diction to enforce the suppression remedy
Congress enacted in Title III to redress
wiretap violations of the Fourth Amend-
ment
ones fk fF SF DH WD LD
— —
Ss = ©
14
14
19
ii TABLE OF CONTENTS.
C. The court below erred in applying Davis
v. United States, supra, to proceedings insti-
tuted by state prisoners under 28 U.S.C.
§§ 2241 and 2254 to redress violations of
their constitutional rights | 23
II. Assuming arguendo that petitioner’s claims
of right can be relegated to the status of “non-
constitutional errors,” the court below incor-
rectly ruled that Davis v. United States con-
stricts the power of federal courts to review
such claims under the jurisdiction conferred
by 28 U.S.C. § 2254 24
III. Assuming arguendo that Davis v. United
States extends to cases brought under 28
U.S.C. § 2254, the court below misapplied
Davis to bar review of the Fourth Amend-
ment and Title III claims asserted in this case 28
A. Davis does not apply to a case involving
Title III claims , 28
B. Davis does not apply to the Fourth
Amendment and Title III claims raised in
this case 28
C. The court below erred in not finding
petitioner sufficiently “prejudiced” to war-
rant affording him a federal forum for his
Fourth Amendment and Title III claims 30
Conclusion 33
Appendix follows page 33
Opinion of the United States Court of Appeals
for the First Circuit la
Judgment of the United States Court of Appeals
for the First Circuit 4a
TABLE OF CONTENTS. iii
Memorandum and order of the United States
District Court for the District of Massachusetts 5a
Constitution of the United States, Fourth
Amendment 10a
Omnibus Crime Control and Safe Streets Act of
1968 (relevant portions) 10a
United States Code, Title 28, sections 2241 and
2254 l4a
Massachusetts General Laws, chapter 272,
section 99 (relevant portions) 15a
Order authorizing interception of wire com-
munications, dated May 10, 1972 17a
Table of Authorities Cited.
CASEs.
Beck v. Ohio, 379 U.S. 89 (1964) 18
Berger v. New York, 388 U.S. 41 (1967) 12n, 13, 14,
15, 16, 24n, 28 et seq.
Bowen v. Johnston, 306 U.S. 19 (1939) 28
Brown v. Allen, 344 U.S. 443 (1953) 25, 26n
California v. LaRue, 409 U.S. 109 (1972) 24n
Carafas v. LaVallee, 391 U.S. 234 (1968) 21
Commonwealth v. Todisco, 294 N.E. 2d 860 (Mass.
S.J.C. 1973) 18n
Davis v. United States, 417 U.S. 333 (1974) 3, 11, 23,
24, 25, 27, 28 et seq.
Desist v. United States, 394 U.S. 244 (1969) 26n
Fay v. Noia, 372 U.S. 391 (1963) 26
iv TABLE OF AUTHORITIES CITED.
Gelbard v. United States, 408 U.S. 41 (1972) 21, 22, 23
Halpin v. Superior Court, 101 Cal. Rptr. 375, 495 P.
2d 1295 (Cal. S. Ct. 1972), cert. den. sub nom.
California v. Halpin, 409 U.S. 982 (1972) 5n
Johnson v. Robinson, 415 U.S. 361 (1974) 20n
Katz v. United States, 389 U.S. 347 (1967) 13, 14, 15,
16, 17, 18, 24n et seq.
Kaufman v. United States, 394 U.S. 217 (1969) 21, 23n,
25, 26n
Langella v. Com’r of Corrections, 545 F. 2d 818 (2d
Cir. 1976) 28
Moore v. United States, 461 F. 2d 1236 (D.C. Cir.
1972) 18n, 19n
Osborn v. United States, 385 U.S. 323 (1966) 18
Steele v. United States, 267 U.S. 498 (1924) 19n
Stone v. Powell, ____ U.S. ___., 96 S. Ct. 3037
(1976) 3, 11, 19, 20,
22, 23
Sunal v. Large, 332 U.S. 174 (1947) 23n, 26
United States v. Calandra, 414 U.S. 338 (1974) 22, 23
United States v. Capra, 501 F. 2d 267 (2d Cir. 1974) 12n
United States v. Donovan, ____ U.S. ____, 97 S. Ct.
658 (1976) 12, 13n, 29
United States v. Giordano, 469 F. 2d 522 (4th Cir.
1972), affirmed, 416 U.S. 505 (1974) 12
United States v. Giordano, 416 U.S. 505 (1974) 12n, 13,
20, 22, 29
United States v. Iannelli, 528 F. 2d 1290 (3d Cir.
1976) 28
United States v. Kahn, 415 U.S. 143 (1974) 20
TABLE OF AUTHORITIES CITED. Vv
United States v. Kalustian, 529 F. 2d 585 (9th Cir.
1975) 21
United States v. King, 478 F. 2d 494 (9th Cir. 1973) 12n
United States v. Lamonge, 458 F. 2d 197 (6th Cir.
1972) 29
United States ex rel. Machi v. U.S. Dept. of Prob. &
Par., 536 F. 2d 179 (7th Cir. 1976) 30n
United States v. Marion, 535 F. 2d 697 (2d Cir.
1976) 12n
United States v. Pennsylvania Chem. Corp., 411
U.S. 655 (1973) 32n
United States v. Robinson, 468 F. 2d 189 (5th Cir.
1972) 12
United States v. Vecchiarello, 536 F. 2d 420 (D.C.
Cir. 1976) 28
Walder v. United States, 347 U.S. 62 (1954) 21
Warden v. Hayden, 387 U.S. 294 (1967) 21
Wong Sun v. United States, 371 U.S. 471 (1963) 18n
Zwickler v. Koota, 389 U.S. 241 (1967) 25
CONSTITUTIONAL AND STATUTORY PROVISIONS.
United States Constitution, Fourth Amendment 2, 3, 4.
11, 13, 14, 15 et seq.
18 U.S.C.
§ 3182 27n
§§ 3501-3503 20n
28 U.S.C.
§ 1254(1) 2
§ 2241 2, 3, 4, 23
§ 2254 2, 3, 4, 23, 24, 25, 26 et seq.
Pa
vi TABLE OF AUTHORITIES CITED.
§ 2254(a) 24
§ 2255 3, 23n, 24n, 26, 30n
Omnibus Crime Control and Safe Streets Act of 1968
Title I 20n, 26n
Title III, 18 U.S.C. §§ 2510 et seq. 2, 3, 4, 5,
6, 7, 8 et seq.
§ 2510 22
§ 2511 13
§ 2515 5, 14, 21, 29
§ 2516(1) 30n
§ 2516(2) 5
§ 2518 13
§ 2518(4) 6, 13, 24n, 31
§ 2518(4)(e) 28
§ 2518(5) 5, 6n, 12, 13, 24n, 28, 30 et seq.
§ 2518(10)(a) 8, 14
§ 2518 (10)(a)(ii) 8, 29
M.G.L. c. 272
§ 99 4
§ 991 6
LEGISLATIVE MATERIALS.
114 Congressional Record
11189 20n
11598-11599 12n
11747 26n
12834 26n
14469 13n
14470 13n
14700 12n
TABLE OF AUTHORITIES CITED. vii
14713 12n, 13n
14717 } 13n
14728 13n
Hearings before the Subcommittee on Criminal Laws
and Procedures, Sen. Judiciary Committee, 90th
Cong., Ist Sess. (1967) 13n
Senate Report No. 1097, 90th Cong., 2d Sess. (1968),
1968 U.S. Code Cong. & Admin. News 5n, 12n, 13n,
14n, 21, 22, 24n, et seq.
Statement of Congressional Findings, Pub. L. 90-
351 13n, 23n, 27n
MISCELLANEOUS.
Bator, Shapiro, Miskin & Wechsler, Hart and Wechs-
ler’s The Federal Courts and The Federal System
(1977 Supp.) 26, 27n
Comment, 88 Harv. L. Rev. 213 (1974) 27n
Developments — Federal Habeas Corpus, 83 Harv.
L. Rev. 1038 (1970) 26n, 28
In the
Supreme Court of the United States.
Octoser Term, 1976.
No.
FRANCIS A. VITELLO,
PETITIONER,
v.
CHARLES GAUGHAN,
SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL
INSTITUTION, BRIDGEWATER,
RESPONDENT.
Petition for a Writ of Certiorari to the United States Court
of Appeals for the First Circuit.
Francis A. Vitello petitions for a writ of certiorari to
review the judgment of the United States Court of Appeais
for the First Circuit entered in this case on November 8,
1976.
2
Opinions Below.
The opinion of the court of appeals is reported at 544 F.
2d 17, and appended, infra, at p. la. The opinion of the
United States District Court for the District of Massachusetts
(Freedman, J.) is reported at 414 F. Supp. 26, and
appended, infra, at p. 5a.
Jurisdiction.
The judgment of the court of appeals was entered on
November 8, 1976, and is reprinted in the Appendix, infra,
at p. 4a. The original date for filing this petition, February
7, 1977, was extended by order of Mr. Justice BRENNAN to
and including March 9, 1977. The Court’s jurisdiction to
review the judgment of the court of appeals is invoked
under 28 U.S.C. § 1254(1).
Questions Presented.
1. Can habeas corpus relief be refused, consistent with
28 U.S.C. §§ 2241 and 2254, to a state prisoner whose con-
viction is based on wiretap evidence secured in violation of
the Fourth Amendment and the corresponding fundamental
safeguards established by Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510
et seq.?'
‘Title III of the Omnibus Crime Control and Safe Streets Act of 1968
will hereinafter be referred to by its codified sections or generally as the
“Act” or “Title III.”
3
2. Are federal courts empowered under Stone v.
Powell, ___. U.S. ___., 96 S. Ct. 3037 (1976), or other-
wise, to refuse habeas corpus enforcement of the exclusion-
ary rule prescribed by Congress in Title III?
3. Should Stone v. Powell, ___. U.S. ___., 96 S. Ct.
3037 (1976), be retroactively applied to vacate a final judg-
ment entered by the district court ruling a wiretap order
constitutionally defective under the Fourth Amendment
where the State raised no objection to the court’s deciding
the merits of petitioner's claims?
4. Does the rule in Davis v. United States, 417 U.S. 333
(1974), relating to the assertion of nonconstitutional federal
rights in proceedings under 28 U.S.C. § 2255, bar exercise
of habeas corpus jurisdiction under 28 U.S.C. §§ 2241 and
2254 in actions brought by state prisoners asserting rights
guaranteed by the Fourth Amendment and corresponding
safeguards established by Title III?
5. If certain incriminating wiretap evidence would not
have been intercepted, but for the wiretap’s operation for
more days than the state court would or might have
authorized had it complied with Fourth Amendment and
Title III requirements, is a person convicted on the basis of
such evidence “prejudiced” sufficiently by the unlawful
wiretap to invoke federal habeas corpus jurisdiction to .
redress violation of his rights?
6. Can this “prejudice” be cured, consistent with the
Fourth Amendment and Title III, by the court of appeals’
post hoc attempt to fill in the “blank” in the wiretap order
where the number of operating days should have been
specified by presuming conclusively that the period of
operating time applied for by the prosecutor — 15 days, the
statutory maximum — would have been found “necessary”
and granted by the state court?
4
Constitutional and Statutory Provisions Involved.
The text of the Fourth Amendment and pertinent sections
of Title III, of 28 U.S.C. §§ 2241 and 2254, and of M.G.L.
c. 272, § 99, are reprinted in the Appendix, infra, at pp.
10a-16a.
Statement of the Case.
As a result of certain evidence obtained during the opera-
tion of a wiretap installed under a state court order dated
May 10, 1972, Francis A. Vitello was indicted and, in
April, 1973, convicted for violations of various Massachu-
setts gaming laws. Prior to trial and thereafter on appeal
to the Supreme Judicial Court, petitioner sought to have the
wiretap evidence suppressed because nowhere in the
wiretap order or otherwise did the state court specify any
time period or limits and termination date on the tap’s
operation. Suppression was denied by both courts, and,
having exhausted state remedies, petitioner invoked federal
habeas jurisdiction under 28 U.S.C. §§ 2241 and 2254 to
vindicate his rights.
A. Tue Statutory FRAMEWORK.
The statutory structure governing state wiretap orders,
and particularly the interplay of federal and state law,
should be described at the outset. State wiretapping is
precluded by Title III, unless specifically authorized by
a
- see + + amen oe
5
separate state legislation. See 18 U.S.C. § 2516(2).* State
legislation may impose limits on wiretapping which are
more restrictive than those prescribed by Title III.* Where
this occurs, Title III operates to incorporate the more
restrictive standards by expressly denying the state court
power to issue a wiretap order unless the court has acted
and its order is in conformity not only with all federal
requirements, but also “with the applicable State statute.
...” 180U.S.C. § 2516(2). This scheme is enforced by the
suppression rule set forth in § 2515 of the Act.
This statutory framework has important bearing in the
present case because the number of days a wiretap may be
authorized to operate under Title III has been substantially
reduced by Massachusetts legislation. Title Ili restrains
courts from authorizing a wiretap to operate “for any
period longer than is necessary,” and sets the maximum
number of operating days a court may authorize at 30. 18
U.S.C. § 2518(5). The legislative history of Title III reveals
that it was in response to “a command of the Constitution”
that Congress barred courts from authorizing wiretaps to
operate “longer than is necessary” and required this deter-
mination of “necessity” to be made according to the par-
ticular nature and facts of each case.‘ After making this
determination of the necessary operating days, Title III
*See also S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), 1968 U.S.
Code Cong. & Adm. News (hereinafter “S. Rep. No. 1097”), p. 2187.
Some states have chosen not to enact wiretap legislation, and con-
sequently their agents are precluded from employing wiretaps in their
investigations. See Halpin v. Superior Court, 101 Cal. Rptr. 375, 495
P. 2d 1295 (Cal. S. Ct. 1972), cert. den. sub nom. California v. Halpin,
409 U.S. 982 (1972).
*See S. Rep. No. 1097, p. 2187. Of course, the state may not under-
cut Title III by enacting standards which are less restrictive than those
prescribed by Congress. Ibid.
‘S. Rep. No. 1097, p. 2190.
~
6
directs the court to specify that period of time in the wire-
tap order. 18 U.S.C. § 2518(4).°
In regard to this critical decision of the number of opera-
ting days to authorize in a given case, Massachusetts legis-
lation is markedly more restrictive than Title III. Under
M.G.L. c. 272, § 991, the state court must restrict the
number of operating days to a period not longer than is
“necessary,” as Title III requires, but in no event may
the court grant more than 15 days. The court is also
directed under § 991 to bracket the time period during
which the order must be executed, by setting the dates
when interception must commence, and a date up to
30 days later when it must cease.* Like Title III, the
Massachusetts law requires the state court to specify in the
wiretap order both the operating time limit and the period
of possible surveillance.
The wiretap order in this case contained no such specifi-
cation of the number of operating days authorized, or the
period when these operating days could be used.” Nor does
the record indicate that the state court even considered the
*In addition, subsection (5) of § 2518 requires every order to contain
the following directions:
“that the authorization to intercept shall be executed as soon as
practicable, shall be conducted in such a way as to minimize the
interception of communications not otherwise subject to interception
under this chapter, and must terminate upon attainment of the
authorized objective, or in any event in thirty days.”
*For example, presumably when an extreme case of necessity is
shown, a court may authorize the maximum operating time, in a
maximum period, i.e., the wiretap may be operated on 15 days during
a specified 30-day period. Of course, since these are the maximum
periods, it is assumed that both the operating time and the time field of
operation would be shorter in the normal case.
"In fact it did not contain any of the time limits required by Title III
and Massachusetts law. A copy of the order is annexed at p. 17a.
ON
7
question of how many operating days were necessary and
therefore could be authorized. _What the state court
decided on this question, if anything, is completely un-
known. Petitioner maintains that had the state court made
and specified this decision is: compliance with the require-
ments of Title III and the state law it incorporates, the
wiretap would not have been authorized to operate for the
number of days it did and might or would have been shut
down before his incriminating conversations were inter-
cepted.
B. Tue May 10, 1972, Wrrerap APPLICATION.
Application for the wiretap order involved here was made
on May 10, 1972, in the Superior Court for Suffolk County
by a specially designated assistant district attorney. The
application reported that a prior wiretap order had been
applied for and granted by the court on April 24, 1972, in
connection with the same gaming investigation. Apparent-
ly, the wiretap installed under the April 24 order was
operated for eight days and intercepted over 300 conversa-
tions, many of which concerned gaming violations. Even
though the April 24 wiretap was directed against petitioner,
none of the intercepted conversations implicated him in
criminal activities. Despite this, the May 10 application
sought permission to operate the new wiretap against peti-
tioner, as well as the other individuals targeted for the
earlier tap. Like the earlier wiretap, the tap for which the
May 10 application sought authorization was to be installed
on telephones located in a private residence.
The May 10 application requested that the court
authorize wiretapping for a period of 15 days, “com-
mencing on the date of installation. . . .” The application
contains the assertion that 15 days are “required,” but
8
nowhere does it or the accompanying police affidavit
attempt to substantiate this contention.
C. THe May 10 Wimerap Orpen.
Along with the application and police affidavit, the
prosecutor prepared and filed a proposed wiretap order on
May 10, 1972. At the time it was filed, the proposed order
was completely “blank” as to time limits. Most important-
ly, it did not specify and set any time limit on the number
of days the wiretap could operate. Nor did it contain
specifications of the dates on which the wiretapping must
begin and terminate. None of these “blanks” were filled in
by the state court when it reviewed and signed the order
later in the day on May 10, 1972. Nothing in the record
exists to suggest that the court considered the time limits
question or what, if anything, it decided in this regard.
Apparently the wiretap authorized by the May 10 order
was operated on at least 12 days, for approximately eight
hours a day. Some 2,058 conversations were intercepted,
of which only 13 concerned or involved petitioner. A few
of those 13 were incriminating and became the principal
subject of a suppression motion filed pursuant to 18 U.S.C.
§ 2518(10)(a).
D. THE SuPPRESSION MOTION.
Under Title III, a defendant “may move [before trial] to
suppress” wiretap evidence procured on the basis of a
wiretap order “insufficient on its face.” 18 U.S.C. §
2518(10){a)(ii). Pursuant to this provision, petitioner moved
to suppress the wiretap evidence secured under the May 10,
1972, order, on the grounds, among others, that the inter-
9
ceptions were unlawful and the order was insufficient on
its face because the number of days the tap could be
operated had not been set or specified by the court, and
because, in fact, the order contained no time limits. During
oral argument in opposition to the motion, the prosecution
asserted that the absence of these required time limits
in the order was the result of a proofreading failure
by the assistant district attorney who drafted the proposed
order, who “missed the fact that that had been left out”
before it was submitted to the court.* But the prosecution
offered no evidence to suggest the court considered how
many operating days were “necessary” to the investigation,
and, if it did make such a determination, how many
operating days it decided were “necessary.” Nor did the
prosecution offer any explanation for the court’s failure to
insert the required time limits specifying the number of
operating days and the dates on which the wiretapping
must commence and on which it must cease. Apparently,
the prosecutor viewed the state court as a rubber stamp, for
he seems never to have read the order after it issued to
ascertain what operating and other time limits had been set
by the court. If, on the other hand, he had read the order
for the time limits and found none, the prosecutor certainly
owed the court and defense an explanation for not
immediately calling the order’s defects to the court's atten-
tion. No such explanation was offered in response to the
suppression motion.
The trial court denied petitioner's suppression motion.
Despite the fact that Title III and Massachusetts law flatly
require the court to decide and specify in the order the
number of operating days, the trial court excused the viola-
tion on the grounds that it was caused by the prosecutor's
*Transcript of proceedings on December 18-19, 1972, p. 150.
10
inadvertent failure to have “the lines in the [proposed ]
warrant relating to the [proposed] time limitations . . .
typed in . . .” before submission to the issuing court.’ Re-
garding the validity of the order, however, the trial court
concluded that it lacked the power to “review, in what is
an appellate fashion, the action of another judge of the
Court.” *#
E. Tue Drectr APPEAL.
On direct appeal the Supreme Judicial Court sustained
the May 10 wiretap order.’ The court appears to have
focused exclusively on the failure of the order to specify a
“termination date.” No mention is made in the Supreme
Judicial Court’s opinion of the order’s chief defect, the
failure to specify the number of days on which the wiretap
could be operated and the issuing judge’s evident failure to
make a determination of the operating time period on the
basis of “necessity.” With regard to the absence of a
termination date, the court concluded that this time limit
could be supplied by deeming the application’s requested
termination date (15 days after installation of the tap) to be
incorporated in the issued order. The court did not con-
sider it an impediment to such incorporation that the May
10 order neither expressly nor by implication refers to the
15-day request made in the application.
*Transcript of proceedings on January 22, 1973, p. 212.
*@ Id. at 213.
'°The Supreme Judicial Court's opinion is reported at 327 N.E. 2d
819.
ll
F. Perrrrioner’s Resort To Feperat Haseas Corpus.
Federal habeas corpus relief was thereafter sought on the
grounds that the May 10 order was essentially a general and
blank warrant because it specified no time limits. The
Commonwealth raised no objection to the power or pro-
priety of the district court’s exercising habeas jurisdiction to
review petitioners claim. Rather, the Commonwealth
confined itself to the merits, contending that the May 10
order should be read to incorporate the applications’ time
limits. On April 9, 1976, the district court ruled the May
10 order “constitutionally defective.” The court concluded
that there was no case or constitutional authority for in-
corporation where, as here, the applications’ time limits are
not adopted by reference in or physical attachment to the
order.
The First Circuit reversed. Withholding judgment on
the merits, the court below sustained the Commonwealth's
objections to federal habeas corpus review of petitioner's
claim, objections not raised in the district court. The court
reasoned that while the absence of time limit specifications
in the wiretap order simultaneously violate Fourth Amend-
ment and Title III safeguards, habeas corpus relief was
available for neither. A Fourth Amendment attack on the
absence of time limits was precluded, according to the
court, by this Court’s intervening decision in Stone v.
Powell, __. U.S. ____., 96 S. Ct. 3037 (1976). Likewise,
reliance on Title III was futile, for despite the fact that
absence of time limits is a Fourth Amendment violation, the
claim is downgraded to “nonconstitutional error” when the
Title II] suppression remedy is invoked. Such “errors,” in
the cuurt’s estimation, fell within the compass of the rule in
Davis v. United States, 417 U.S. 333 (1974), and could be
redressed in federal habeas corpus proceedings only if suf-
12
ficient “prejudice” has been suffered. The court concluded
that petitioner was not “prejudiced” sufficiently by the
order's defect, characterized as a “fail[ure] to contain the
30-day limit required by” 18 U.S.C. § 2518(5) since there
was no claim the tap operated beyond that time limit.
Reasons for Granting the Writ.
Of all investigatory techniques, wiretapping poses the
greatest threat to constitutional rights of personal privacy. ''
The most dangerous feature of this “awesome power,”
United States v. Giordano, 469 F. 2d 522, 528 (4th Cir.
1972), affirmed, 416 U.S. 505 (1974); United States v.
Robinson, 468 F. 2d 189, 192 (5th Cir. 1972), is the fact
that a wiretap operates as an “electronic dragnet,” indis-
criminately subjecting all conversations to surveillance
regardless of their relevance to legitimate objectives of a
particular investigation.'* This knowledge of the special
dangers of wiretapping was the force that compelled
Congress to enact stringent standards and a maximum
suppression sanction in Title III for the purpose of “limiting
use of the intercept procedure to ‘the most precise and
discriminate circumstances’.” United States v. Donovan,
ome | , 97 S. Ct. 658, 673 n. 25 (1976).
See Berger v. New York, 388 U.S. 41, 64 (1967); United States v.
King, 478 F. 2d 494, 503 (9th Cir. 1973); 114 Cong. Rec. 11598-11599,
14700.
'*See 114 Cong. Rec. 11599, 14713.
‘Congress’ intent primarily was to discourage and limit police use of
“this extraordinary investigative device,” United States v. Giordano, 416
U.S. 505, 527 (1974), except in very clearly specified and controlled
instances. See United States v. Capra, 501 F. 2d 267, 276 (2d Cir.
1974); United States v. Marion, 535 F. 2d 697, 706 (2d Cir. 1976);
United States v. King, supra, at 503; S. Rep. No. 1097, pp. 2185, 2191.
13
Based on findings of widespread illegal wiretapping,
especially prevalent at state and local levels where controls
were few and lacking uniformity,'‘ and guided by this
Court’s application of Fourth Amendment standards to
wiretapping in Berger v. New York, 388 U.S. 41 (1967), and
Katz v. United States, 389 U.S. 347 (1967),'* Congress
moved decisively in 1968 by enacting Title III to establish
meaningful safeguards and remedies for the constitutional
rights of those subjected to wiretapping and other forms of
electronic surveillance.
Congress designed Title III to serve primarily a preventive
rather than remedial role in protecting constitutional rights
of privacy. See United States v. Giordano, 416 U.S. 505,
523, and n. 12 (1974).'* Title III achieves this end by
clearly delineating the Berger-Katz requirements, § 2518,
by proscribing wiretaps conducted without prior court
authorization, §§ 2511, 2518, by enjoining courts from
authorizing any wiretap to operate for longer than is
“necessary” and: in no event for longer than 30 days
(or a lesser period set by state statute), § 2518(5), and
by directing courts to specify the time and other par-
ticularized limits in the wiretap order, § 2518(4). Obedi-
ence to these requirements is compelled mainly through
See Statement of Congressional Findings, Pub. L. 90-351, § 801.
See Hearings before the Subcommittee on Criminal Laws and Pro-
cedures, Sen. Judiciary Committee, 90th Cong., Ist Sess. (1967), p. 75;
114 Cong. Rec. 14713.
'SSee United States v. Donovan, supra, at 668; S. Rep. No. 1097, p.
2153; as Senator McClellan, the principal author and proponent of Title
Ill, stated: “every safeguard, in keeping with what the Supreme Court
has said in the most recent cases, would be required [by the Act]. Every
constitutional safeguard has been placed in the bill.” 114 Cong. Rec.
14469, 14728; see also 114 Cong. Rec. at 14470, 14717.
'*The basic intent of Congress was to prevent unlawful wiretapping
through explicit substantive regulations and the deterrent eftect of a
strictly applied suppression rule. S. Rep. No. 1097, p. 89.
14
the deterrent effect generated by the suppression rule
contained in § 2515 and effectuated by § 2518(10)(a).'”
The decision below substantially undermines Congress’
effort to prevent unconstitutional and excessive wiretapping,
particularly by state authorities, by eliminating a vital
measure of federal habeas power to enforce the suppression
rule Title III prescribes as the chief deterrent against wire-
tap abuses. This decision stands in conflict with the Fourth
Amendment standards the Court declared in Berger and
Katz, with the maximum deterrent effect against violation
of these standards Congress intended to achieve by Title
III's suppression rule, with the habeas corpus jurisdiction
Congress has extended for redress of constitutional and
federal law violations by state officials, and with the
decisions of the Second, Third and District of Columbia
Circuits. Because of its important consequences, its con-
flict with the rulings of other Circuits, and its dubious
= the decision below should be reviewed by this
ourt.
I. Tue Decision BeLow ConFLiCTs WITH THE MANDATE
OF CONGRESS AND THIS Court THAT FEDERAL CouRTS HAVE
AND Must Exercise Haseas Corpus JURISDICTION TO SuP-
PRESS Wiretap EvipENCE SEIZED IN VIOLATION OF THE
FourTH AMENDMENT PuRSUANT TO THE SUPPRESSION RULE
Concress ENACTED IN TITLE III.
A. In Specifying No Time Limits, the May 10 Order
Constitutes a “General Warrant” Facially Void under
the Fourth Amendment.
In Berger v. New York, supra, this Court condemned a
wiretap order authorizing 60 days of interception as a
''See S. Rep. No. 1097, pp. 2185, 2195.
15
virtual “general warrant” and void on its face under the
Fourth Amendment. In Katz v. United States, supra, this
Court ruled that the Fourth Amendment warrant require-
ments apply to wiretaps “afford[ing] similar protections”
for the privacy of those exposed to electronic surveillance
as have been afforded in traditional search and seizure
settings. 389 U.S. at 355, quoting from Berger v. New
York, supra, 388 U.S. at 57. In both cases the constitu-
tional violations were found without regard to whether the
subject of surveillance had actually been prejudiced by the
actions that rendered the wiretap procedure invalid. Sup-
pression was ordered in Berger because of the 60-day
authorization, even though incriminating evidence was
secured within 14 days. 388 U.S. at 45. In Katz, the
Court conceded that the wiretap procedure followed by the
FBI was entirely constitutional except for the failure to in-
corporate the agent’s self-imposed restraints in a warrant.
Failure to obtain a warrant was, the Court ruled, “per se
unreasonable under the Fourth Amendment,” and the evi-
dence procured by the wiretap must be suppressed. 389
U.S. at 357.
Together, Berger and Katz create a warrant system
geared to the special character and dangers of wiretapping.
Two requirements of that system have particular im-
portance in this case: first, time limits on the operation of
the wiretap must be set and specified in the warrant or
order; and second, these limits must restrict the wiretap so
that it affects “no greater invasion of privacy . . . than [is]
necessary under the circumstances.” Katz v. United States,
supra, at 355, quoting from Berger v. New York, supra, at
57.
Measured by these Berger-Katz requirements, the wiretap
order in this case amounts to a massive violation of the
Fourth Amendment. The order sets and specifies no date
16
or instructions for early installation and initiation of wiretap
interception. It provides no termination date. Most
importantly, it sets and specifies no limit on the amount of
time the tap can operate. Indeed, the only reference in the
order to time limits on the tap’s operation is that it
“shall not automatically terminate when the type of
communication described in the Application and Affi-
davit has been first obtained, but shall continue until
communications are intercepted which reveal the
details of said violation . . .” (p. 19a).
And neither the order nor record in any part suggests that
the state court even considered the question of how much
operating time was “necessary” in this case. The order, in
short, is “blank” as to time limits, relegating both the police
who must execute it and the courts who must validate the
evidence seized under it to the position of having to
speculate as to what if any time limits the issuing court
actually imposed.
The facial invalidity of the May 10 order is conceded by
respondent. But the Commonwealth contends that the
order can be resurrected by reading into it th: operating
time and termination date requested in the May 10 applica-
tion. That approach simply cannot be reconciled with the
terms or purposes of the Fourth Amendment warrant
requiyement.
The Fourth Amendment, as this Court ruled in Berger
and Katz, requires all particularizations limiting the scope
and duration of the wiretap invasion of privacy to be set on
the basis of “necessity” and specified in the “warrant.”
Neither the text of the Amendment nor the Court’s opinions
suggest exceptions to this rule; certainly there is no sug-
17
gestion that the various requests and conclusions stated by
the prosecution in its application and affidavit can be
deemed or presumed to be the court’s findings and warrant
specifications.
Acceptance of the Commonwealth’s position would
render the warrant requirement a nullity. A warrant is not
a mere formality. Its role is central in the Fourth
Amendment scheme, since it serves as the full and final
word on when and how a search can be conducted. As the
single definitive source of authority, the warrant can be
relied on by the police to guide their actions, eliminating
guesswork and discretion; it can command respect from
those whose privacy is being invaded, representing in
writing the detached and deliberative judgment of a magis-
trate; and it can provide the authoritative response to any
claim that evidence was seized unlawfully. See Katz v.
United States, supra, at 357-359.
Respondent’s position that the warrant should not be
treated as the full and final word by which the legality of
the search is to be tested leads in two opposite and equally
destructive directions. In one direction the position opens
the way to a reign of speculation and doubt as each side
marshals extrinsic evidence to supplement or dispute what
the issuing court specified in the warrant. The other
direction is toward a rule, which appears to have been
accepted by the Supreme Judicial Court in this case, that
the issuing court is conclusively presumed to have granted
whatever operating time the police want. Its premise must
be that the issuing court is a “rubber stamp.” Such a
presumption is plainly unacceptable. Since the court's duty
is to limit the operating time to no longer than is necessary,
it can hardly be assumed that it would or did find that a
police request, here for the maximum time, is presumptively
18
confined to what is necessary.'"* Following either course
undermines the integrity of the warrant and the “procedure
of antecedent justification . . . that is central to the Fourth
Amendment,” Osborn v. United States, 385 U.S. 323, 330
(1966), and installs the rule of an after-the-event justifica-
tion for the . . . search, too likely to be subtly influenced by
the familiar shortcomings of hindsight judgment.” See
Katz v. United States, supra, at 358-359, quoting from
Beck v. Ohio, 379 U.S. 89, 96, 97 (1964). '*
Moreover, as the district court found, respondent's
position that the application’s time limits are incorporated
by the May 10 order finds no case support. No decision
authorizes supplementation of the warrant from an applica-
tion or affidavit except in circumstances where those
documents are expressly incorporated by reference in or by
physical attachment to the warrant. *°
'*To assume the police request regarding operating time is limited to
what is “necessary” is contrary to the reasons prior clearance and
warrants are required in the first place. It is in response to the reality
that police officials pursuing their quarry cannot be relied on to take a
neutral, deliberative stance regarding the needs of their investigation
that the Fourth Amendment has been consistently read to require “that
the deliberate, impartial judgment of a judicial officer . . . be inter-
posed between the citizen and the police. . . .” Wong Sun v. United
States, 371 U.S. 471, 481-482 (1963).
'*Another consequence of following either course, one well illustrated
in this case, is that there will be strong incentives for the prosecutor and
police to treat the court as a rubber stamp. That must have been the
attitude of the prosecutor in this case, since he evidently did not even
bother to read the order after it was signed to ascertain what limits the
court had imposed on the wiretap. Of course, if the prosecutor had
read the order, he certainly was obligated to advise the court immedi-
ately of its insufficiency.
**See Moore v. United States, 461 F. 2d 1236 (D.C. Cir. 1972). That
case exemplifies the type of case where the problem of incorporation
generally arises; see, e.g., Commonwealth v. Todisco, 294 N.E. 2d 860
19
B. The Court Below Erred in Holding that Stone v.
Powell, __. _U.S. ___, Precludes Federal Courts
from Exercising Habeas Jurisdiction to Enforce the
Suppression Remedy Congress Enacted in Title III to
Redress Wiretap Violations of the Fourth Amendment.
Stone v. Powell, supra, is concerned exclusively with a
“judicially created” suppression rule. See 96 S. Ct. at
3046. Stone holds that the Fourth Amendment does not
require the suppression remedy or its enforcement by federal
(Mass. S.J.C. 1973). Instead of referring to the target premises
described in the underlying affidavit, the warrant in such cases attempts
to summarize the description, but fails fully to repeat every significant
detail. Where this has happened courts have allowed reference to the
affidavit, if it is expressly incorporated or physically attached to the
warrant when issued. But another basis for incorporation is that the
particular aspect of the warrant involved in these cases is only meant
to be a summary of the affidavit, not a statement of “any judicial deter-
mination” regarding the scope of the search. Moore v. United States,
supra, at 1238. The test for a warrant’s sufficiency as to the
identity of the premises to be searched is whether “the officer with
a search warrant can, with reasonable effort ascertain and identify
the place intended.” Steele v. United States, 267 U.S. 498, 503 (1924).
Since the portion of the warrant involved is merely descriptive and not
judgmental, it is reasonable for the officer who executed the affidavit
and will execute the search to consult the affidavit to flesh out the
court’s summary. Moreover, it is fair for the officer to assume that the
court means the place the officer has described in the affidavit since the
court has no independent knowledge of the premises and is not likely to
approve a search broader in scope than the police seek to undertake.
But, in this case the question is limits on the amount of time a wire-
tap may operate, not the address or number of the telephone. Setting
time limits requires the court to make an independent judgment of how
much time is necessary under the circumstances. It is clear that this
judgment also requires the court to apply its experience and instincts as
a neutral decisionmaker to strike the proper balance between investiga-
tory and privacy interests. Certainly the police cannot look at a
warrant that specifies no time limits and reasonably assume that the
court necessarily approved the limits requested in the application,
especially where the operating time sought by the prosecutor is the
maximum amount possible.
20
habeas corpus. As such the existence of the remedy and the
degree of its enforcement are matters of judicial policy.
“[W Jeighing the utility of the exclusionary rule against the
costs of extending it to collateral review of Fourth Amend-
ment claims,” the Court concluded that the additional
deterrent effect generated was too small to justify the costs
of more exacting enforcement of the Constitution. 96 S.
Ct. 3049, 3051.
The Title III suppression rule was created by Congress,
not the courts. A short and full response to the decision
below is that Stone does not and, indeed, could not reverse
the policy judgment of Congress. United States v. Gior-
dano, 416 U.S. 505, 524 (1974). Whether the courts deem
habeas enforcement of the Title III suppression rule good or
bad policy, the matter is entirely for Congress to decide.
Congress’ unalterable decision was to harness the vital
power of federal habeas corpus to the Title III suppression
rule.
Nothing in the language, history or purposes of Title III
suggests the contrary. Title III neither contains nor implies
any limit on the availability of federal habeas jurisdiction to
enforce the statutory suppression remedy. If this had been
its intention, Congress surely could and, it must be pre-
sumed, would have said so. See United States v. Kahn,
415 U.S. 143, 153 (1974).*
*'In fact, several proposed versions of Title II of the Omnibus Crime
Control and Safe Streets Act incorporated sections limiting either or both
the exclusionary rule and federal habeas jurisdiction to enforce it. See,
e.g., 114 Cong. Rec. 11189. Congress enacted certain regulatory
measures relating to the judicial exclusionary rule regarding confessions
and eye-witness identification. See 18 U.S.C. §§ 3501-3503. It
enacted no similar restriction on the Title III exclusionary rule and no
restriction on the availability of federal habeas corpus jurisdiction to
enforce the Title III or any other suppression rule. Thus, Congress was
not without words to express an intention to establish such restrictions.
Moreover, in accord with the governing canon of statutory construction
requiring “clear and convincing evidence,” of a Congressional intention
to impose such restrictions, Title III should not be construed “to restrict
access to judicial review.” Johnson v. Robinson, 415 U.S. 361, 373-
374 (1974).
21
Nor does the history of Title III indicate such an inten-
tion. What does appear, however, is that Congress was
acutely aware of the distinctive threat wiretapping posed to
the right of privacy. United States v. Kalustian, 529 F. 2d
585, 588 (9th Cir. 1975). The suppression rule embodied in
§ 2515 was cited continuously throughout the legislative
hearings and debates by proponents of Title III as the
primary assurance that the safeguards of privacy established
by the Act would be scrupulously obeyed. See Gelbard v.
United States, 408 U.S. 41, 46-51 (1972); S. Rep. No. 1097,
p. 2185. In S. Rep. No. 1097, the key legislative report, it
was affirmed that there was no intention “to press the scope
of the suppression rule beyond present search and seizure
law. See Walder v. United States.” The Walder cita-
tion plainly reveals Congress’ meaning. It makes evi-
dent Congress’ intention that Title III’s suppression rule
not afford the defendant “a shield against contradic-
tion,” see Walder v. United States, 347 U.S. 62, 65 (1954).
But it is equally clear that Congress intended that its
suppression rule would ensure, as it perceived the judicial
rule did, that “the Government cannot make an affirma-
tive use of evidence unlawfully obtained.” Walder v.
United States, supra. In serving this role, Congress meant
to have its suppression rule enforced by the same measure of
judicial power and resources as the judicial suppression rule
was receiving under then “present search and seizure law.”
Under the then “present” law, it was firmly established that
federal habeas corpus remedies were available to vindicate
the Fourth Amendment rights of state defendants. See
Carafas v. LaVallee, 391 U.S. 234 (1968); Warden v.
Hayden, 387 U.S. 294 (1967); see also Kaufman v. United
States, 394 U.S. 217, 225 (1969). Enforcement of Fourth
Amendment rights by federal habeas corpus remedies was
the “present” search and seizure law Congress incorporated
22
as a component of the suppression rule it created. The
maximum deterrent effect such remedies afford was plainly
intended by Congress for its suppression rule, which was
“designed to protect privacy ... [and] serve to guarantee
that the standards of the new chapter will sharply curtail
the unlawful interception of wire and oral communica-
tions.” S. Rep. No. 1097, p. 2185.
Congress’ purpose in creating the Title III suppression
rule was to compel strict adherence to the safeguards
prescribed by the Act, see United States v. Giordano,
supra, by removing any and every incentive to violate
them. Congress intended that the Title III suppression rule
would exert its deterrent force to the maximum degree.
In Stone v. Powell, supra, this Court cited the fact that the
judicial suppression rule applies only in criminal trial
settings as telling evidence that the rule was never conceived
of as achieving its maximum deterrence potential. But that
same type of evidence in regard to the breadth of the Title
III suppression rule demonstrates, in contrast to the judicial
rule, that the purpose of Congress was to generate a deter-
rent effect at the maximum level. Thus, while the judicial
rule was confined to the criminal trial, Congress’ rule
extends to all phases of the criminal proceeding from the
grand jury to sentencing, and to the correctional process as
well, including parole and probation proceedings. While
standing to invoke the judicial rule is quite narrow,
standing under Title III to suppress extends to any “person
aggrieved,” including “a person against whom the intercep-
tion was directed.” 18 U.S.C. § 2510. The judicial rule
applies only to criminal proceedings; the suppression rule in
Title III applies “across the board,” to criminal, civil,
administrative and legislative proceedings. S$. Rep. No.
1097, p. 2185. Also compare United States v. Calandra,
414 U.S. 338 (1974), to Gelbard v. United States, 408 U.S.
23
41 (1972). Finally, by contrast to the judicial rule, see
Stone v. Powell, supra, one express purpose of the Title
III suppression rule is to “protect the integrity of court and
administrative proceedings.”** See Gelbard v. United
States, supra, at 66, compare United States v. Calandra,
supra, at 347-348.
Congress was fully aware of the costs of such a suppres-
sion rule, but it was equally aware of the special threats to
privacy posed by wiretapping and it was determined to
prevent their realization by guaranteeing maximum enforce-
ment of Title III’s suppression rule. See Gelbard v. United
States, supra, at 46-51.
C. The Court Below Erred in Applying Davis v. United
States, supra, to Proceedings Instituted by State
Prisoners under 28 U.S.C. §§ 2241 and 2254 to Redress
Violations of their Constitutional Rights.
Contrary to the decision below, Davis v. United States,
supra, does not apply to this case.. Davis is strictly limited
to nonconstitutional claims.** In this case petitioner asserts
fundamental rights guaranteed by the Fourth Amendment.
Whatever limits Davis may impose in federal habeas corpus
cases, they are confined to nooconstitutional errors of law,
*?Statement of Congressional Findings, Pub. L. 90-351, § 801(b).
*3 Davis carries forward a distinction between constitutional and
nonconstitutional claims which this Court has consistently followed in
determining the availability of relief under 28 U.S.C. § 2255. See
Kaufman v. United States, 394 U.S. 217, 223 (1969); Sunal v. Large,
332 U.S. 174, 179 (i947).
24
and therefore present no barrier to review of petitioner’s
Fourth Amendment claims on their merits. **.
II. AssuMING ARGUENDO THAT PETITIONER'S CLAIMS OF
RIGHT CAN BE RELEGATED TO THE STATUS OF “NONCONSTI-
TUTIONAL Errors,” THE Court BELOW INCORRECTLY RULED
THAT Davis v. UNITED STATES CONSTRICTS THE POWER OF
FEDERAL Courts TO REvIEW sUCH CLAIMS UNDER THE
JURISDICTION CONFERRED BY 28 U.S.C. § 2254.
In 28 U.S.C. § 2254(a) Congress expressly conferred juris-
diction on federal courts to grant a writ of habeas corpus to
persons in custody under state court judgments in violation
**While petitioner invokes a statutory remedy to vindicate his Fourth
Amendment rights, this is no basis for downgrading the substantive right
he asserts from one guaranteed by the Constitution to one protected only
by statute. In Davis, the focus was on the substantive claim and its
source in the Constitution or statute. Whatever limit Davis imposes in
§ 2255 proceedings was confined solely to nonconstitutional substantive
claims. To hold that invocation of Title III remedies for Fourth
Amendment violations has the effect of downgrading the claim of right
to nonconstitutional status would mean that Davis limits must apply in
every case. For if the invocation of a statutory remedy triggers the
downgrading of constitutional rights, it follows that such downgrading
will occur merely on the request for the statutory remedies provided by
28 U.S.C. § 2255.
While a wiretap order without time limits simultaneously violates
Title III, 18 U.S.C. § 2518(4) and (5), and the Fourth Amendment, the
character of the right violated is not reduced to “nonconstitutional error”
merely because the Fourth Amendment right is repeated in a statutory
text. Indeed, Congress acted under the explicit grant of constitutional
power under § 5 of the Fourteenth Amendment, see S. Rep. No. 1097,
p. 2180, to implement Fourth Amendment restrictions on state use of
wiretaps. Cf. California v. LaRue, 409 U.S. 109 (1972). Nor is there
any evidence in the legislative history of Title III suggesting that
Congress, in restating the Berger-Katz standards in statutory text, meant
to demote their status and qualify their enforcement through federal
habeas corpus actions.
~—
25
of the “laws” as well as the Constitution of the United
States. That provision, “express[ing] the choice of Congress
how the superior authority of federal law should be
asserted,” imposes a power and duty on federal courts to
“review errors of federal law in state determinations.”
See Brown v. Allen, 344 U.S. 443, 508-510 (1953) (opinion
of Mr. Justice Frankfurter). In short, § 2254 invests state
prisoners with a right to have their federal claims of right,
predicated on the Constitution or federal statute, reviewed
by a federal court. Congress has essentially made the
federal courts “the primary and powerful reliances for
vindicating every right given by the Constitution, the laws,
and treaties of the United States.” Zwickler v. Koota, 389
U.S. 241, 247 (1967); see also Kaufman v. United States,
394 U.S. 217 (1969).
There is nothing in the text or history of § 2254 that says
or implies that the federal courts may pick and choose
between federal “law” (as opposed to constitutional) claims
as to which deserve vindication and which do not based on
some standard of “prejudice.” Quite appropriate to this
case, confronting the Davis incursion on § 2254, is Mr.
Justice Frankfurter’s injunction, issued in a closely analo-
gous § 2254 context:
“Under the guise of fashioning a procedural rule, we
are not justified in wiping out the practical efficacy of
a jurisdiction conferred by Congress... .
Rules which in effe.. treat all these cases indiscrimi-
nately as frivolous do not fall far short of abolishing
this head of jurisdiction.” Brown v. Allen, supra,
at 498-499.
Nor does the Davis opinion suggest its application to
§ 2254. Davis, of course, concerned only proceedings for
a
26
collateral review under 28 U.S.C. § 2255 of federal court
judgments. While § 2254 and § 2255 serve analogous roles,
they are fundamentally distinct in one important respect.
In a § 2255 proceeding, the petitioner has already had the
advantages of a federal trial and generally a federal
appellate forum. In § 2254 cases the petitioner has not.
Since a central purpose of federal habeas corpus is to
provide a meaningful opportunity for review of federal
rights in a federal forum, ** it may be reasonable to raise the
threshold to such a forum where the federal claims have
already been litigated once before in federal courts. Cf.
Fay v. Noia, 372 U.S. 391, 424 (1963); Sunal v. Large,
322 U.S. 174, 178 (1947); and see Bator et al., Hart and
Wechsler’s The Federal Courts and The Federal System
(1977 Supp.), p. 268. These considerations obviously have
no application to a § 2254 proceeding, where, as here, the
right to federal review is invoked for the first time. **
**See Kaufman v. United States, 394 U.S. 217, 225-226 (1969);
Brown v. Allen, 344 U.S. 443, 508-509 (1953) (opinion of Mr. Justice
Frankfurter); Desist v. United States, 394 U.S. 244, 262-263 (1969) (Mr.
Justice Harlan dissenting); Developments — Federal Habeas Corpus, 83
Harv. L. Rev. 1038, 1040 (1970).
**In 28 U.S.C. § 2254, Congress has provided for review of consti-
tutional and federal law claims as a matter of right. Nothing in § 2254
or its history suggests any qualification of that right.
While review is available in this Court on a writ of certiorari
following direct appeal to the highest state court, that review is exceed-
ingly discretionary. Moreover, it has been frequently recognized that
practical limitations make it impossible for this Court to bear the burden
of being the first and last federal forum to oversee the enforcement of
constitutional and other federal rights in state cases. See, e.g., Develop-
ments — Federal Habeas Corpus, supra, at 1061. Among the points
that appear to have been decisive in Congress’ judgment not to cut back
federal habeas corpus jurisdiction was the conclusion that placing such a
burden on this Court would greatly decrease the controlling and unify-
ing force of federal court review of state court enforcement of federal
rights. See 114 Cong. Rec. 11747. Federal habeas courts were aptly
described during the Congressional debate over Title II of the Act as
“sitting as delegates or masters for the Supreme Court.” 114 Cong. Rec.
12834.
27
To the extent that Davis acts as a gatekeeper for
relitigation of federal claims that had or could have been
considered by a federal court, it reflects very practical
concerns that the “writ of habeas corpus not be allowed to
do service for an appeal.” Because of the myriad federal
statutory rights that apply in federal criminal cases, it is
necessary to cull out those relatively few occasions where
Congress could reasonably have intended to provide
a right of litigation. By contrast, the occasion when
a federal statutory right will affect the course of a
state criminal case will be exceedingly rare.*’ It is fair
to assume that only the most compelling federal interests
would give rise to the enactment by Congress of statu-
tory controls on state criminal cases. Title III is a good
example of the type of interests and fundamental Con-
gressional power that would be involved. It follows
that, with so great a federal stake in such laws and their
proper enforcement, Congress would intend their necessary
and unqualified inclusion under § 2254 to ensure effective
federal court supervision. Again Title III is in point, since
it was enacted not only to protect the fundamental right
of privacy, but also to provide a uniform and unifying
codification of wiretap safeguards to take the place of dis-
parate or nonexisting state regulations. See S. Rep. No.
1097, pp. 2153, 2156.** Plainly, Congress intended that
such legislation would have the responsive and unifying
*7Comment, 88 Harv. L. Rev. 213, 218 (1974). Bator, Shapiro,
Miskin & Wechsler, Hart and Wechsler’s The Federal Courts and The
Federal System (1977 Supp.), p. 267. The most common example of
federal habeas review of nonconstitutional claims by state prisoners has
been in the enforcement of federal extradition rights. See, e.g., 18
U.S.C. § 3182.
**See also Statement of Congressional Findings, supra, Pub. L.
90-351, § 801(a).
28
enforcement that only an unqualified right to habeas review
in the federal courts can assure. See generally, Develop-
ments — Federal Habeas Corpus, supra.
III. AssuMING ARGUENDO THAT Davis v. UNrrTep STATES
ExTENDs TO Cases BrouGHT UNDER 28 U.S.C. § 2254,
THE Court BELow Misapputiep Davis To Bar REVIEW OF
THE FourTH AMENDMENT AND TITLE III CLamms AsSERTED
IN THIS CASE.
A. Davis does Not Apply to a Case Involving Title III
Claims.
Because of the preemptive character of Title III, because
of the important purposes served by its uniform code of
safeguards and its suppression remedy, and especially
because Congress has mandated strict enforcement of the
Act, there exist in cases raising Title III claims “exception-
al circumstances where the need for the remedy afforded by
the writ of habeas corpus is apparent.” Bowen v. John-
ston, 306 U.S. 19, 27 (1939). In refusing to find such
“exceptional circumstances” here, the decision below is in
direct conflict with the decisions of the Third Circuit in
United States v. Iannelli, 528 F. 2d 1290 (1976); District of
Columbia Circuit in United States v. Vecchiarello, 536 F.
2d 420 (1976); and the Second Circuit in Langella v. Com’r
of Corrections, 545 F. 2d 818 (1976).
Congress created the Title III suppression rule in the
image, at least for the purposes of the right to review under
28 U.S.C. § 2254, of the judicial suppression rule as it
operated under the then present search and seizure law.
That law, which Congress incorporated into Title III's
suppression rule, contained no Davis limitations on the
29
availability of § 2254 for review of Berger-Katz claims.
That law remains, by Congressional mandate, the law of
Title III, and any attempt to excise it would substantially
disrupt and impair the enforcement scheme Congress
constructed, and, in any event, would be beyond the proper
scope of judicial power.
B. Davis does Not Apply to the Fourth Amendment and
Title III Claims Raised in this Case.
There is no doubt that the warrant, failing to set and
specify time limits, as required by § 2518(4)(e) and (5) of
the Act, is “insufficient on its face” under § 2518(10)(a)(ii)
and the evidence obtained as a result is subject to suppres-
sion under § 2515 of the Act. The violation charged is not
of some technical or tangential provision of the Act.
Rather, this is a violation of the highest magnitude. The
time limit requirements are not only at the very center of
the constellation of wiretap safeguards Title III prescribes
to limit wiretap use “to ‘the most precise and discriminate
circumstances,” United States v. Donovan, supra, at 673,
n. 25, but they are also a restatement of Fourth
Amendment commands given by Berger and Katz. See
United States v. Lamonge, 458 F. 2d 197 (6th Cir. 1972);
S. Rep. No. 1097, p. 2190.
Davis, by its own terms, applies only where there is a
“technical error” of procedure. 417 U.S. at 346. There is
no conceivable justification for terming the Fourth Amend-
ment and Title III violation committed in this case a “tech-
nical error.” Consequently, no showing of “prejudice” can
be required.
It should also be noted that in requiring a showing of
“prejudice” the court below did not simply erect a
30
procedural barrier to the exercise of habeas jurisdiction.
The real consequence of that decision was impermissibly to
alter the substantive nature of the rights involved. For
neither the Fourth Amendment nor Title III defines the
right to time limits or conditions its enforcement on a show-
ing of “prejudice.” See Berger v. New York, supra;
Katz v. United States, supra; and United States v.
Giordano, supra, at 523, and n. 12. Where the constitu-
tion and Congress expressly decree a right that requires no
showing of prejudice for its enforcement, the courts may
not amend the substantive composition of the right through
actions labeled “procedural.”
Refusal by the court below to review petitioner's Fourth
Amendment and Title III claims directly conflicts with the
decisions in the District of Columbia, Second and Third
Circuits noted above, see supra, at 28.**
C. The Court Below Erred in Not Finding Petitioner
Sufficiently “Prejudiced” to Warrant Affording him a
Federal Forum for his Fourth Amendment and Title III
Claims.
Even assuming federal habeas corpus review can be
conditioned on a showing of “prejudice,” it is clear that
under the circumstances of this case an ample showing of
**The decision below also conflicts with the decision of the Seventh
Circuit in United States ex rel. Machi v. U.S. Dept. of Prob. & Par.,
536 F. 2d 179 (1976), extending habeas corpus review under § 2255 to a
claim based on § 2516(1) of the Act. No Davis bar was perceived by
the court to prevent reaching this claim. While the court applied Davis
to another apparent Title III claim, it is obvious that the court regarded
that issue as substantively frivolous and could for that reason have dis-
missed it outright.
31
prejudice has been made and the court below erred in not
so finding.
The court below held that petitioner was not “preju-
diced” by the absence of “the 30-day limit” in the May 10,
1972, wiretap order, as required by § 2518(5) of the Act.*°
But the absence of this limit is not at issue in this case. The
critical failures challenged here*' were the state court's
failure to make a determination of how many operating
days were “necessary” given the nature and facts of this
case, and its failure to set and specify such determination of
the necessary operating time limits in the order. The
obligation to make this determination is imposed by the first
sentence of § 2518(5), and to specify that determination by
§ 2518/4).
The court’s characterization of the failure as a “steno-
graphic error” and not one of substance demonstrates a
fundamental misconception of the nature of the violation
and its consequences. While the “30-day limit” may be
regarded as a “boilerplate” provision whose stenographic
omission from the order is inconsequential, the same is
definitely not true of the failure to set and specify the
operating time. The “30-day limit” instruction applies to
all cases and does not reflect a deliberated judgment of the
court based on the nature and facts of the given case. But
just such a judgment is required in setting operating time
limits on the wiretap in compliance with the standard of
“necessity.”
*°“The 30-day limit” is one element of the general instruction every
warrant must contain that “authority to intercept ... must terminate
upon attainment of the authorized objective, or in any event in 30
days.”
*'The absence of all required time limits constitutes a massive
violation of the time limit specification requirements imposed by Title
III and the Massachusetts law it incorporates. But the failure of chief
consequence involves the absence of the operating time limits.
32
To suggest that the error was stenographic is to presume
unreasonably that the state court necessarily granted the
operating time the prosecutor requested.** In fact, there is
no evidence of what the court determined regarding opera-
ting time limits. There is every possibility that under the
circumstances in this case the court, had it made the
required determination and specified it, would have
restricted the operating time to a substantially shorter period
than the maximum period requested by the prosecu-
tor. This was a second tap directed at petitioner, it
was installed on telephones located in a private home,
the earlier tap had intercepted hundreds of phone calls,
some entirely private having no import to the criminal
investigation, and the request was for the maximum
operating time in a case that could hardly be termed
extremely serious or difficult to investigate. Other factors
— including the court’s experience, the Congressional de-
mand for restraint in using even lawful wiretaps, and the
judge’s intuitive assessment of the realities and personalities
involved — might have further reduced the operating time
the court would find necessary. In short, petitioner's rights
were severely prejudiced because the tap’s operating time
might or would have been reduced had the state court
complied with the Fourth Amendment and Title III. **
** The stenographic failure to specify the proposed operating time was
made in the prosecutor's office, not the judge’s. While the prosecutor
drafted the order, it remained nothing more than a “proposal” repeating
various requests made in the application.
**The prosecutor obviously viewed the state court to be a rubber
stamp, since he apparently never read the order after it was signed to
ascertain the time limits. Both the Fourth Amendment and Title III
require wiretap orders to specify the judge's findings as a means of con-
trolling the prosecution. Obviously, this objective is defeated if the
prosecutor does not read the order. The failing then was not by the
prosecutor's secretary or his proofreading, but by his wanton disregard
of the warrant process, which left him free to invade privacy as he saw
33
Conclusion.
For all the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
FRANCIS J. DIMENTO,
DIMENTO & SULLIVAN,
100 State Street,
Boston, Massachusetts 02109.
Dated: March 9, 1977.
fit. The prosecutor’s actions cannot be condoned on the assumption
that if he or she goes too far suppression is always an available remedy.
For that would be contrary to the basic philosophy behind both the
Fourth Amendment and Title III, which is to prevent violations,
not repair them. In this case, had the prosecutor read the order
he would have discovered the absence of time limits and then could
have called the problem to the court’s attention for immediate rectifi-
cation. Since the prosecutor had the opportunity to cure the defect
and failed to use it because of his indifference to the court’s process,
the Commonwealth should be estopped from claiming innocent mis-
take and from asserting an objection to suppression. Cf. United States
v. Pennsylvania Chem. Corp., 411 U.S. 655, 674 (1973).
la
Appendix.
United States Court of Appeals
for the First Circuit
No. 76-1207
FRANCIS A. VITELLO,
PETITIONER, APPELLEE,
v.
CHARLES GAUGHAN, erc.,
RESPONDENT, APPELLANT.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. Frank H. Freepman, U. S. District Judge)
[414 F’. Supp. 26]
Before Corrin, Chief Judge,
AupricH anpD CaMPBELL, Circuit Judges.
Barbara A. H. Smith, Assistant Attorney General, Criminal Division, with
whom Francis X. Bellotti, Attorney General, and Joha J. Irwin, Jr., Assistant
Attorney General, Chief, Criminal Bureau, were on brief, for appellant.
Thomas J. Carey, Jr., on brief for Massachusetts District Attorneys Associ-
ation, amicus curiae.
Francis J. Dikfento, with whom James J. Sullivan, Jr., Philip T. Tierney,
and DiMento ¢ Sullivan were on brief, for appellee.
November 8, 1976
Aupricn, Senior Circuit Judge. Petitioner for habeas
corpus finds himself in state prison as a result of evidence
acquired by a wiretap authorized by a warrant which failed
to contain the 30-day limit required by the Omnibus Crime
2a
2 . VITELLO V. GAUGHAN
Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(5).
The application for the warrant contained the limitation,
but, by secretarial negligence, none was included in the
warrant itself. In point of fact, the evidence was acquired
in 12 days. On appeal, the Massachusetts court sustained
the conviction, Commonwealth v. Vitello, Mass. Adv. Sh.
(1975) 769, 327 N.E. 2d 819, holding that the warrant must
be read in conjunction with the application, and that, alter-
natively, petitioner had no complaint in the absence of
prejudice. Petitioner takes the position that, under federal
law, since the warrant contains no reference to the applica-
tion, it must be read on its face, and hence it, and its fruits,
are to be treated as void.
While the habeas corpus statute authorizes issuance of
the writ to those who are in state custody ‘‘in violation of
the Constitution’ or laws . . . of the United States,’’ 28
US.C. § 2254 (emphasis suppl.), it has never been thought
that every error of law in a criminal trial warrants issu-
ance of the writ. See, e.g., Davis v. United States, 1974,
417 U.S. 333. Indeed, even a constitutional violation will
not call for habeas corpus relief where the petitioner was
not harmed by the error. E.g., Booton v. Hanauer, 1 Cir.,
(9/2/76) F. 2d. ; Subilosky v. Moore, 1 Cir., 1971,
443 F. 2d 334, cert. denied, 404 U.S. 958. We hold that
whether or not the state court erred, as a matter of federal
law, in reading the warrant and application together,’ peti-
tioner is not entitled to release since the error, if any, was
not prejudicial.
1 The district court held petitioner’s custody to be in violation of the Con-
stitution, a ruling that petitioner concedes cannot stand in view of the Court’s
subsequent decision in Stone v. Powell, (7/6/76) ——- U.8. ——, holding that
habeas corpus relief is not to be afforded for Fourth Amendment claims al-
ready litigated in state criminal proceedings.
2 Petitioner cites as allegedly contrary authority, Moore v. United States,
D.C.Cir., 1972, 461 F.2d 1236; United States v. Meeks, 6 Cir., 1963, 313 F.2d
464; United States v. Ortiz, D.Colo., 1970, 311 F.Supp. 880, aff’d 445 F.2d
1100, cert. denied, 404 U.S. 993.
3a
OPINION OF THE COURT 3
As the Court said in Davis v. United States, ante, at 346,
quoting Hill v. United States, 1962, 368 U.S. 424, 428, in
determining whether an alleged nonconstitutional error is
cognizable on collateral review,
‘‘the appropriate inquiry [is] whether the claimed
error of law [is] ‘a fundamental defect which in-
herently results in a complete miscarriage of justice,’
and whether ‘[i]t . . . present[s] exceptional circum-
stances where the need for the remedy afforded by the
writ of habeas corpus is apparent.’ ’’
Though Davis involved section 2255, we think the test
the Court set forth for determining whether an alleged vio-
lation of federal law warrants habeas corpus relief is
equally applicable to section 2254. See Hill v. United
States, ante, at 428 n.5, semble.
It being apparent that no prejudice resulted from the
inadvertent omission of a termination date from the war-
rant, petitioner argues that prejudice need not be shown,
and that Davis is distinguishable because it did not involve
an exclusionary rule. We are not persuaded by petitioner’s
cases allegedly supporting the proposition that prejudice
is irrelevant; counsel fails to note that all of them involve
direct, not collateral review, a distinction often pointed out.
See, e.g., Atwell v. Arkansas, 8 Cir., 1970, 426 F. 2d 912, 915.
Alternatively, petitioner urges that this is a special case
because of Congress’ announced concern over unjustified
and excessive wiretapping. See Omnibus Crime Control
and Safe Streets Act of 1968 4 801, 82 Stat. 211. Granted
that Congress was interested in deterrence, see S. Rep. No.
1097, 90th Cong., 2d Sess, (1968), 1968 U.S. Code Cong. &
Admin. News at 2185, clearly it was concerned with sub-
staritive excesses, not stenographic error. The fruit of such
error should not be a windfall for petitioner.
Reversed; petition dismissed.
4a
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 76-1207.
FRANCIS A. VITELLO,
PETITIONER, APPELLEE,
vo.
CHARLES GAUGHAN, erc.,
RESPONDENT, APPELLANT.
JUDGMENT.
Entered November 8, 1976. _
This cause came on to be heard on appeal from the
United States District Court for the District of Massachu-
setts, and was argued by counsel.
Upon consideration whereof, It is now here ordered,
adjudged and decreed as follows: The order of the District
Court is vacated and the cause is remanded with directions
to dismiss the petition.
By the Court:
DANA H. GALLUP,
Clerk.
ot ET ln ae
5a
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRANCIS A. VITELLO
Crvit ACTION
v. No. 75-3077-F
CHARLES GAUGHAN, as he is
Superintendent of the
Massachusetts Correctional
Institution, Bridgewater
Memorandum and Order.
April 9, 1976.
FREEDMAN, D.J.
This matter is before the Court on a petition for writ of
habeas corpus. Petitioner Francis A. Vitello was convicted
of various violations of the gambling laws of the Common-
wealth and sentenced to prison. These convictions were
upheld by the Supreme Judicial Court, Commonwealth v.
Vitello, 1975 Mass. Adv. Shts. 769, 327 N.E. 2d 819.
Vitello bases his present attack upon a narrow aspect of one
of the two wiretap warrants used in the prosecution of the
case.
6a
The facts necessary for a determination of the issue can
be briefly stated. On May 10, 1972, a state judge issued a
warrant authorizing certain telephone wiretaps for use in
the gambling investigation which resulted in petitioner's
challenged conviction. The warrant was defective on its
face as it did not contain a termination date for the wiretap
interceptions as required by 18 U.S.C. § 2518(4)(e) and the
Fourth and Fourteenth Amendments. The application for
the warrant, however, did include such a termination date.
The parties agree that the only issue before the Court is
whether the application may be read with the warrant to
supply the necessary termination date or whether the
warrant must stand alone and thus fail. See Berger v. New
York, 388 U.S. 41 (1967).
The thrust of petitioner’s argument is that there must be
some affirmative reason to permit a reviewing court to rely
upon the application to uphold a facially defective warrant.
Reference to the application would be permitted, he argues,
if there were an ambiguity on the face of the warrant, or if
the application were incorporated by reference, or if the
application had been physically attached to the warrant.
None of these exceptions is available in the instant case; and
thus, petitioner contends, the warrant cannot be saved.
Vitello relies upon United States v. Lamonge, 458 F. 2d
197 (6th Cir.), cert. denied, 409 U.S. 863 (1972), as support
for his position. While Lamonge was concerned with a
facially invalid warrant, the means the prosecution used in
attempting to cure it were quite different from those used in
this case. There the prosecutor attempted to amend the
warrant by motion at trial. No attempt was made to read
the warrant with the application — the procedure ad-
vocated here. Apparently petitioner cites Lamonge for the
‘A more exhaustive statement of the facts may be found in the
Supreme Judicial Court opinion, Commonwealth v. Vitello, supra.
7a
proposition that a facially invalid warrant cannot be saved.
Plainly, this is not the law, see, e.g., United States v.
Tortorello, 480 F. 2d 764 (2nd Cir.), cert. denied, 414 U.S.
866 (1973), (affidavits specifically incorporated into wire-
tap orders). The narrow question for this Court is whether
there is some factor in this case which would permit the
application to be read with the warrant. Lamonge does
not address this issue.
Another of the cases cited by petitioner, however, is per-
suasive authority for his position. In Moore v. United
States, 461 F. 2d 1236 (D.C. Cir. 1972), the court in up-
holding a warrant, defined those circumstances in which
the affidavit is to be read with the warrant:
There is a fundamental distinction between the warrant
and the underlying affidavit, and the affidavit is not
necessarily either part of the warrant or available for
defining the scope of the warrant.
However, the warrant may properly be construed with
reference to an affidavit for purposes of sustaining the
particularity of the premises to be searched, provided
(1) the affidavit accompanies the warrant, and in
addition (2) the warrant uses “suitable words of refer-
ence” which incorporate the affidavit by reference.
(Footnote and citations omitted.) Id. at 1238
The Moore court’s formula for determining when the
supporting papers can be read with a warrant does not
seem to include a situation such as the one in this case
where no reference to the application or physical attach-
ment of the application is present. See, also, United States
v. Ortiz, 311 F. Supp. 880, 883 (D. Colo. 1970), aff'd. 445
8a
F. 2d 1100 (10th Cir.), cert. denied, 404 U.S. 993 (1971),
and United States v. Meeks, 313 F. 2d 464, 466 (6th Cir.
1963).
As petitioner carefully documents in his memorandum the
reasoning of the Commonwealth’s principal authority,
United States v. Manfredi, 488 F. 2d 588 (2d Cir. 1973),
cert. denied, 417 U.S. 936 (1974), cannot bear close scru-
tiny. That case seems to stand for the principal that even
in the absence of the special circumstances outlined above
an affidavit may nevertheless be read with a warrant to
supply the necessary elements. Manfredi relied upon
United States v. Tortorello, supra, as supporting this propo-
sition. Tortorello cannot be extended that far, however,
since the warrant in that case specifically incorporated the
affidavit. The bald assertion in Manfredi that supporting
papers may be used to validate a warrant appears to be
unsupported in prior case law.* Accordingly, I am
persuaded that petitioner is entitled to prevail on this issue.
The alternative ground advanced by the Commonwealth
for upholding the warrant is that the police officer upon
whose affidavit the assistant district attorney based his
application for the warrant participated in the execution of
the warrant. Thus, respondent argues, the information
contained in the supporting papers may be imputed to the
officer and the missing termination date thereby supplied.
The authority for this assertion is Commonwealth v.
Todisco, 1973 Mass. Adv. Shts. 613, 294 N.E. 2d 860.
*It may also be that Manfredi is factually distinguished since it was
the minimization requirement that was omitted from the order, not the
termination date as in this case. Some courts do not regard the absence
of minimization instructions as substantial, see, e.g., United States v.
Baynes, 400 F. Supp. 285, 309 (E.D. Pa. 1975). [West Publishing Co.
has cited this case as affirmed without opinion, 517 F. 2d 1399. This is
incorrect; no final action has yet been taken in this case by the Third
Circuit. ]
9a
Petitioner contends that Todisco should not be followed
because it was wrongly decided and that, in any event, this
Court is not bound by it. I do not reach these contentions
because it is clear that the facts of this case are distinguish-
able from those of Todisco. In Todisco there was simply
an affidavit and a search warrant. The affiant executed
the warrant and when faced with an ambiguity was able to
resolve it based upon the facts in the affidavit. In the
instant case the termination date which respondent seeks to
have the Court read into the warrant is contained in the
application of the assistant district attorney, not in the
police officer’s affidavit. To permit an incorporation of the
application in this case would amount to an extension of
Todisco justified neither by the cited authority nor by
reference to Fourth Amendment principles. The oft-cited
line from United States v. Ventresca, 380 U.S. 102, 108
(1965) that “. . . affidavits for search warrants . . . must be
tested and interpreted by magistrates and courts in a
commonsense and realistic fashion.”, is inapposite in this
context and cannot correct the otherwise invalid warrant.
For the foregoing reasons the Court finds the May 10,
1972, warrant to be constitutionally defective. The writ of
habeas corpus shall issue unless within ninety (90) days from
the date this Order becomes final the Commonwealth shall
have begun proceedings to retry the petitioner.
FRANK H. FREEDMAN,
United States District Judge.
10a
Constitution of the United States.
The Fourth Amendment to the United States Constitution
provides in pertinent part:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
Omnibus Crime Control and Safe Streets Act of 1968.
Title III of the Omnibus Crime Control and Safe Streets
Act of 1968 provides in pertinent part:
§ 2515. [Prohibition of use as evidence of inter-
cepted wire or oral communications. ]
Whenever any wire or oral communication has been
intercepted, no part of the contents of such commu-
nication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other
proceeding in or before any court, grand jury, depart-
ment, officer, agency, regulatory body, legislative com-
mittee, or other authority of the United States, a State,
or a political subdivision thereof if the disclosure of
that information would be in violation of this chapter.
lla
§ 2516. [Authorization for interception of wire
or oral communications. |
(2) The principal prosecuting attorney of any State,
or the principal prosecuting attorney of any political
subdivision thereof, if such attorney is authorized by
a statute of that State to make application to a State
court judge of competent jurisdiction for an order
authorizing or approving the interception of wire or
oral communications, may apply to such judge for, and
such judge may grant in conformity with section 2518
of this chapter and with the applicable State statute
an order authorizing, or approving the interception of
wire or oral communications by investigative or law
enforcement officers having responsibility for the in-
vestigation of the offense as to which the application is
made, when such interception may provide or has
provided eyidence of the commission of the offense of
murder, kidnapping, gambling, robbery, bribery, ex-
tortion, or dealing in narcotic drugs, marihuana or
other dangerous drugs, or other crime dangerous to
life, limb, or property, and punishable by imprison-
ment for more than one year, designated in any ap-
plicable State statute authorizing such interception, or
any conspiracy to commit any of the foregoing offenses.
§ 2518. [Procedure for interception of wire or oral
communications. }
(4) Each order authorizing or approving the inter-
ception of any wire or oral communication shall
specify —
12a
(a) the identity of the person, if known, whose
communications are to be intercepted;
(b) the nature and location of the communica-
tions facilities as to which, or the place where,
authority to intercept is granted;
(c) a particular description of the type of com-
munication sought to be intercepted, and a statement
of the particular offense to which it relates;
(d) the identity of the agency authorized to
intercept the communications, and of the person
authorizing the application and
(e) the period of time during which such inter-
ception is authorized, including a statement as to
whether or not the interception shall automatically
terminate when the described communication has
been first obtained.
(5) No order entered under this section may author-
ize or approve the interception of any wire or oral
communication for any period longer than is necessary
to achieve the objective of the authorization, nor in
any event longer than thirty days. Extensions of an
order may be granted, but only upon application for
an extension made in accordance with subsection (1)
of this section and the court making the findings
required by subsection (3) of this section. The period
of extension shall be no longer than the authorizing
judge deems necessary to achieve the purposes for
which it was granted and in no event for longer than
thirty days. Every order and extension thereof shall
contain a provision that the authorization to intercept
shall be executed as soon as practicable, shall be con-
ducted in such a way as to minimize the interception
of communications not otherwise subject to intercep-
tion under this chapter, and must terminate upon
ee eitaers
13a
attainment of the authorized objective, or in any event
in thirty days.
(10) (a) Any aggrieved person in any trial, hearing
or proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of
the United States, a State, or a political subdivision
thereof, may move to suppress the contents of any
intercepted wire or oral communication, or evidence
derived therefrom, on the grounds that —
(i) the communication was unlawfully inter-
cepted;
(ii) the order of authorization or approval under
which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity
with the order of authorization or approval.
Such motion shall be made before the trial, hearing,
or proceeding unless there was no opportunity to make
such motion or the person was not aware of the
grounds of the motion. It the motion is granted, the
contents of the intercepted wire or oral communica-
tion, or evidence derived therefrom, shall be treated
as having been obtained in violation of this chapter.
The judge, upon the filing of such motion by the
aggrieved person, may in his discretion make available
to the aggrieved person or his counsel for inspection
such portions of the intercepted communication or
evidence derived therefrom as the judge determines to
be in the interests of justice.
l4a 15a
United States Code, Title 28.
Massachusetts General Laws, Chapter 272.
Sections 2241 and 2254 of 28 U.S.C. provide in pertinent Section 99 of Massachusetts General Laws, Chapter 272,
part: provides in pertinent part:
§ 2241. [Power to grant writ. ]
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective jurisdic-
tions. The order of a circuit judge shall be entered in
the records of the district court of the district wherein
the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and
any circuit judge may decline to entertain an applica-
tion for a writ of habeas corpus and may transfer
the application of hearing and determination to the
district court having jurisdiction to entertain it.
(c) The writ of habeas corpus shall not extend to a
prisoner unless — .
(3) He is in custody in violation of the Constitution
or laws or treatises of the United States; .. .
§ 2254. [State custody; remedies in Federal courts. ]
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application
for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
(Eavesdropping, Wire Tapping, and Other Intercep-
tion of Communications. ]
I. Warrants: form and content.
A warrant must contain the following:
1. The subscription and title of the issuing judge;
and
2. The date of issuance, the date of effect, and
termination date which in no event shall exceed thirty
days from the date of effect. The warrant shall permit
interception or oral or wire communications for a
period not to exceed fifteen days. If physical installa-
tion of a device is necessary, the thirty-day period
shall begin upon the date of installation. If the effec-
tive period of the warrant is to terminate upon the
acquisition of particular evidence or information or
oral or wire communication, the warrant shali so
provide; and
3. A particular description of the person and the
place, premises or telephone or telegraph line upon
which the interception may be conducted; and
4. A particular description of the nature of the oral
or wire communications to be obtained by the inter-
ception including a statement of the designated offense
to which they relate; and
5. An express authorization to make secret entry
upon a private place or premises to install a specified
intercepting device, if such entry is necessary to execute
the warrant; and
l6a
6. A statement providing for service of the warrant
pursuant to paragraph L except that if there has been
a finding of good cause shown requiring the post-
ponement of such service, a statement of such finding
together with the basis therefor must be included and
an alternative direction for deferred service pursuant
to paragraph L, subparagraph 2.
ee eee
© Mn K Eas BB. 2 om BW
17a
COMMONWEALTH OF MASSACHUSETTS.
SUFFOLK, SS: SUPERIOR COURT
SUFFOLK TO WIT:
TO THE DISTRICT ATTORNEY FOR THE COUNTY OF SUFFOLK,
HIS SPECIALLY DESIGNATED ASSISTANT DISTRICT ATTORNEY, AND
HIS DESIGNATED INVESTIGATIVE AND LAW ENFORCEMENT
OFFICERS:
GREETING:
Whereas, application in writing under oath, supported by
Affidavits, has been made before me this day, the subscriber
hereto, ReusBen L. Luniz, a Justice of the Superior Court of
the Commonwealth, for a order authorizing and directing
the interception of wire communications pursuant to
Mass. General Laws, Chapter 272, Section 99; complaining
that two females, “Mitty” and “Mary”, a more complete
description being unknown to the Commonwealth at this
time, who are now working at 28 Meyer Street, Roslindale
section of the City of Boston and using two telephones
located therein, 323-1012 and 327-5892, in order to violate
Mass. General Laws, Chapter 271, Section 17 and to
conspire to violate the same; have conducted, are conduct-
ing, and will continue to conduct from said 28 Meyer
Street, criminal activities connected with a continuing con-
spiracy by means of a highly organized and disciplined
organization to engage in supplying illegal goods and
services, namely; violation of Section 17, Mass. General
Laws, Chapter 271, contrary to the laws of this Common-
wealth, and that they communicate by means of the tele-
phones between and among themselves in furtherance of
such conspiracy, that these communications are made by
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Mary and MIL y to Frep VITELLo, to a Wire Service and to
diverse individuals named in the attached Affidavits and
amongst and between any or all of them, and any other
person or persons unknown concerning unlawful Gaming by
means of the telephone instruments located on the above
described premises at 28 Meyer Street, and that said instru-
ments 323-1012 and 327-5892 are of this date both listed to
Wi.u1aM P. West as subscriber at said address according to
the records of the New England Telephone and Telegraph
Company, and used by said Mmty and Mary and other
diverse individuals and persons unknown at this time who
send and receive wire communications concerning unlawful
Gaming and violations of Section 17 of Mass. General
Laws, Chapter 271, and conspire to violate the same.
Whereas the application for authority to intercept the
wire communications as aforesaid complies with the pro-
visions, purposes and procedures of Section 99, Chapter
272, Mass. General Laws, as Amended, and finding
probable cause supportive of these presents, We ComMMAND
you and each of you forthwith, with necessary and proper
systems to INTERCEPT any communications transmitted over,
from, and to the telephone instrument of Witu1am P.
West, located at 28 Meyers Street, Roslindale section of
Boston, Massachusetts, and to tap and make connection
with any and all wires leading to the telephone instru-
ments as of this date numbered 323-1012 and 327-5892,
with a purpose to obtain evidence of the unlawful activities
of Mary, Mitty, Frep VireL_to, FRANK VITELLO and other
persons as described in the Affidavit submitted with said
application and a person or persons unknown at this time
concerning Unlawful Gaming and violations of Section 17,
Mass. General Laws, Chapter 271, and to aid in the appre-
hension and discovery of the persons herein named and
their unknown confederates in crime, and that such inter-
— et re et
19a
ception procedure shall not automatically terminate when
the type of communication described in the Application and
Affidavit has been first obtained, but shall continue until
communications are intercepted which reveal the details of
said violations or the said conspiracy and the identity of
participants therein and the extent of the violations and the
location or locations involved therein because the Applica-
tion alleges, and it is found as a fact that good cause,
special important facts, and exigent circumstances exist to
require the postponement of service of a copy of the within
warrant until after the expiration of this and related investi-
gations, but not later than three (3) years thereafter, and
that the evidence obtained by authority of these presents be
dealt with according to law, and return this warrant with
your doings thereon.
You are therefore authorized and directed with all neces-
sary assistants to install leased lines for the interception of
said wire communications. The leased lines used in the
execution of this warrant is to consist of a private telephone
line installed at a place designated by Rosperr SNIDER,
specially designated Assistant District Attorney. The leased
line is to be supplied by the New England Telephone &
Telegraph Co. pursuant to this order and warrant.
Witness, my hand and seal on this date of issuance the
10th day of May, 1972.
REUBEN L. LURIE,
Suffolk Superior Court.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.