Petitioners Brief — Scott v. United States

IN THE } NOV go j977

Supreme Court of the G (te otate sco

OCTOBER TERM, 1977

No. 76-6767

FRANK RICARDO SCOTT

and

BERNIS LEE THURMON,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

BRIEF OF PETITIONERS

SAMUEL DASH

MICHAEL E. GELTNER

Georgetown University Law Center

Appellate Litigation ( linic

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

Tele: (202) 624-8297

JOHN A. SHORTER, Esa.

508 Sth Street, N.W.

Of Counsel: Washington, D.C. 20001

Christopher M. McMurray Tele: (202) 638-4040

Kenneth D. Polin Attorneys for Petitioners

Washington OC © CLS PUBLISHERS « LAW PRINTING CO. « (202) 393-0525

.

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TABLE OF CONTENTS

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INTRODUCTORY STATEMENT ................-.-

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bye a, |

PROCEDURAL HISTORY OF THE CASE ............

STATEMENT OF THE CASE

SUMMARY OF ARGUMENTS

ARGUMENTS

A REVIEWING COURT MAY NOT FIND

COMPLIANCE WITH MINIMIZATION RE-

QUIREMENTS BY ACCEPTING AN

AFTER THE FACT ANALYSIS AIMED AT

DEMONSTRATING THAT NARCOTICS

AGENTS COULD HAVE CONSIDERED

MOST CALLS CRIME RELATED, WHEN

THE MONITORING AGENTS ACTUALLY

CONSIDERED MOST CALLS TO BE NON.

CRIME RELATED AND NEVERTHELESS

MADE NO EFFORT TO MINIMIZE INTER-

CEPTION OF THOSE CALLS ............

THE AGENTS’ BAD FAITH FAILURE TO

COMPLY WITH THE MINIMIZATION OR-

DER REQUIRES THE SUPPRESSION OF

ALL INTERCEPTED CONVERSATIONS.....

BOTH SCOTT AND THURMON HAVE

STANDING, AS AGGRIEVED PERSONS,

TO INSIST ON SUPPRESSION UNDER

DEP ots nuveacdaaeecutesedcons

CONCLUSION

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(ii)

TABLE OF AUTHORITIES

Cases: Page

Alderman v. United States, 394 U.S. 165 (1969) ........ 35

Berger v. New York, 388 U.S. 41 (1967) ....... 20,22 32,33

Bivens v. Six Unknown Named Agents, 403 U.S.

SEDs asd abi cenken cOcaWesssesecogure 22

Bynum v. United States, 423 U.S. 952 (1975) ....... 21,27

Gelbard v. United States, 408 U.S. 41 (1972) .......... 22

Jones v. United States, 362 U.S. 257 (1960) ........... 35

Katz v. United States, 389 U.S. 347 (1967) ....... 20,22 ,32

Kremens v. United States, 353 U.S. 346 (1957) ........ 32

Michigan v. Tucker, 417 U.S. 433 (1974) ...........4.. 23

Osborne v. United States, 388 U.S. 323 (1966) ......... 20

Sabbath v. United States, 391 U.S. 585 (1968) ....... 30,32

Stone v. Powell, 428 U.S. 465 (1976) ...........4--- 22

United States v. Armocida, 515 F.2d 29 (3d Cir.)

cert. denied, 423 U.S. 858 (1975) ..........-.. 24,26

United States v. Bellosi, 501 F.2d 833 (1974) .......... 35

United States v. Calandra, 414 U.S. 338 (1974) ........ 22

United States v. Clerkiey, 556 F.2d 709 (4th Cir.

rear ee er ere See 26

United States v. Chavez, 533 F.2d 491 (9th Cir.

DE 60660 0b HOS ERO SOM CR REEETES 04 6 0-000 0< 24

United States v. Cox, 462 F.2d 1293 (8th Cir.

1972) cert. denied, 417 U.S. 918 (1974) ....... 24,2632

United States v. Daly, 535 F.2d 434 (8th Cir. 1976)...... 26

United States v. DiRe, 332 U.S. 581 (1948) ........... 23

United States v. Donovan, 97 S.Ct. 658 (1977) ......... 30

United States v. Focarile, 340 F. Supp. 1033 (D.

Md.) aff'd sub nom United States v. Giordano,

469 F.2d 522 (4th Cir. 1972), aff'd 416 US.

a es ie is coe ew een eee ones 21,31 ,32,33

(iii)

United States v. George, 465 F.2d 772 (6th Cir.

Dn a¢kauwee be badeeepaewreeedesccee0es 32

United States v. James, 494 F.2d 1007 (D.C. Cir.)

cert. denied, 419 U.S. 1020 (1974) .... 6,12,13,26,27,28

United States v. Janis, 428 U.S. 433 (1976) ........... 22

United States v. Johnson, 333 U.S. 10 (1948) .......... 23

United States v. King, 335 F. Supp. 523 (S.D. Cal.

1971), rev'd on other grounds, 478 F.2d 494

(9th Cir. 1973), cert. denied, 417 U.S. 920

i cat rceere seca eek e Ree MES ee os oo 6:0 32

United States v. LaGorga, 336 F. Supp. 190 (W.D.

Bee ee ee ee eee 32

United States v. Leta, 332 F. Supp. 1357 (D.C. Pa.

1971), rev’d on other grounds 467 F.2d 647 (3d

Pe MG eeGde sce eueb eG eebGddeeceseeée 32

United States v. Marron, 275 U.S. 192 (1927) ......... 33

United States v. Peltier, 422 U.S. 531 (1975) ......... 22,23

United States v. Quintana, 508 F.2d 867 (7th Cir.

Ne a SIRE pts EI a a 26,27

United States v. Scott, 331 F. Supp. 233 (D.D.C.

nt See eee elie ed ae at es oon. 600 2

United States v. Scott, 504 F.2d 194 (D.C. Cir.

re ee ee awe cae e ew bas eal « as 2,6,12,13,36

United States v. Scott, 516 F.2d 751 (D.C. Cir.

1975), cert. denied, 425 U.S. 917 (1976) ... 2,6,23,24,36

United States v. Scully, 546 F.2d 255 (9th Cir.

Dt Anebie eae eae e da ewes obs be 6 oe 6 0 < 31

United States v. Sisca, 361 F.Supp. 735 (S.D. N.Y.

1973), aff'd 503 F.2d 1337 (2d Cir. 1974).......... 32

United States v. Torterillo, 480 F.2d 764 (2d Cir.),

cert. denied, 414 U.S. 866 (1973) ............. 13,26

United States v. Turner, 528 F.2d 143 (9th Cir.

Dt hakbebene beune sede bee w kb bbob 6666 «as 31

United States v. Vento, 533 F.2d 838 (3d Cir.

Se OTE ES ep cen rs an 24

(iv)

Statutes: |

18 USC. S2SIQ(L1) CIDTO) . ccc ccccvccscees

IS USC. B253S (IDFR) . nw cccccesessccosesun

[18 USL. G2GIGES) occ cc ccccccssuessenneee

18 USC. S2S1G(S) (IDFR) . ccc cccccsccccss

IS USL. S2SIGIS) (IDFR) ow cc cvcccesescunes

18 USL. S2SIGLIGMa) .. occ ccscsesteueeenen

21 USC. SOCD (IGTRD . 2. 0s oveccuunneee

26 USL. 94700s) (ISTO... oc ce eunee eee

26 U.S.C. $7237(b) (1970) 0. cece eee e eens

Miscellaneous:

Note. Minimization and the Fourth Amendment, 19

N.Y.LJ. B61 (IDT4) pp cc cc ccc sccccseses

Note, Minimization: In Search of Standards, 8

Suffolk U.L.Rev. GO (1973)... ccc cccccens

Note, Minimization of Wire Interception: Pre-Search

Guidelines and Post-Search Remedies, 26 Stan.L.

Rev. 1411 (IDTE) cc cccccscccseseeesens

S. Rep. No. 1097, 90th Cong., 2d Sess. (1968),

reprinted in 1968 U.S. Code, Cong. & Ad. News. .

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-6767

FRANK RICARDO SCOTT

and

BERNIS LEE THURMON,

Petitioners,

UNI: =D STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

BRIEF OF PETITIONERS

INTRODUCTORY STATEMENT

The Court, on October 11, 1977, granted a writ of

certiorari to the United States Court of Appeals for the

District of Columbia Circuit to review the judgment of

that court affirming petitioners’ convictions and its two

interlocutory decisions reversing district court orders

suppressing wiretap evidence for failure to minimize

interception of non crime-related conversations in

violation of 18 U.S.C. §2518(5).

The first suppression opinion is at 331 F. Supp. 233

(D.D.C. 1971), and the Court of Appeals’ first remand

opinion (“Scott I”) is at 164 U.S. App. D.C. 125, 504

F.2nd 194 (1974). The second suppression order is not

reported, and the Court of Appeals’ second reversal

opinion (“Scott II’) is at 170 U.S. App. D.C. 158, 516

F.2nd 751 (1975). The Court of Appeals’ third opinion,

affirming the convictions, is not reported.

This Court has jurisdiction to review the judgment

below by writ of certiorari under 28 U.S.C. §1254(1).

The judgment was entered March 29, 1977, and, upon

application, the time for petitioning for a writ of

certiorari was extended to May 28, 1977. The petition

was filed May 19, 1977,

STATUTES INVOLVED

18 U.S.C. §2510

(11) “‘aggrieved person” means a person who was

a party to any intercepted wire or oral communi-

cation or a person against whom the interception

was directed.

18 U.S.C. §2518

(5) No order entered under this section may

authorize 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 authori-

zation 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.

(10)(a) Any aggrieved person in any trial, hearing,

or proceeding in or before any court, department,

officer, agency, regulatory body, or other author-

ity of the United States, a State, © a political

subdivision thereof, may move to suppress the

contents of any intercepted wire or oral communi-

cation, 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 con-

formity 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.

If the motion is granted, the contents of the

intercepted wire or oral communication, 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 aggneved person or his counsel for

inspection such portions of the intercepted com-

munication or evidence derived therefrom as the

judge determines to be in the interests of justice.

QUESTIONS PRESENTED

1. When narcotics agents executing judicial wiretap

orders requiring them, under 18 U.S.C. §2518(5), to

minimize the interception of non crime-related conver-

sations admittedly made no good faith try at

minimization and instead intercepted every conversation

in whole despite their own conclusion that sixty (60)

per cent of the conversations were non crime-related,

may a court, consistent with the deterrent basis of Title

Ill of the Safe Streets Act of 1968 and the

exclusionary rule, sustain the execution of the wiretaps

by accepting the after the fact analysis of the wiretap

transcripts prepared by an Assistant United States

Attorney which abandoned the categories used by the

executing narcotics agents and justified interception of

telephone calls on the ground that agents could have

found it not feasible to exclude those calls from

interception,

Il. Whether 18 U.S.C. §2518(10)a) and the Fourth

Amendment exclusionary rule require suppression of all

intercepted conversations when narcotics agents execut-

ing wiretap orders violate the minimization order

required by 18 U.S.C. §2518(5) by failing, in bad faith,

to even attempt minimization of non crime-related

conversations.

Ill. Whether Petitioner Scott, an “aggrieved person”

under 18 U.S.C. §2510(11), who was not heard in any

non crime-related conversations, has “‘standing”’ to insist

On suppression of all conversations intercepted by a

wiretap Operation violating the minimization provisions

of 18 U.S.C. §2518{5) on the ground that “the

communication was unlawfully intercepted” and “the

interception was not made in confirmity with the order

of authorization...” .as provided in 18 U.S.C.

§2518(10)(a)(i) and (iii).

PROCEDURAL HISTORY OF THE CASE

On January 24, 1970, District Judge Smith author-

ized narcotics agents to wiretap a telephone in

accordance with Title III] of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. §2518 (1970).

The authorization contained an order to conduct the

intercept “in such a way as to minimize the

interception of communications that are not otherwise

subject to interception.”’ (App. 80).' Wiretap informa-

tion led to the arrest of Petitioners Frank Ricardo

Scott, (“Scott”), Bemis Lee Thurmon, (“Thurmon’”’)

and others for narcotics laws violations on February 24,

1970. Two multi-count indictments filed on June 24,

1970? charged, Scott, Thurmon and others with

narcotics laws violations.

‘References to the Joint Appendix will be made as (App.

ae

2The two indictments were consolidated in 1971.

6

Scott, Thurmon and others movec to suppress the

wiretap evidence on numerous grounds, and hearings

were held between April 12 and April 21, 1971. On

Apnil 29, 1971, District Judge Waddy suppressed all

wiretap evidence for failure to minimize interception of

non crime-related calls in violation of 18 U.S.C.

§2518(S). 331 F. Supp. 223 (D.D.C., 1971) (App. 1).

The Government moved on May 26, 1971 for

reconsideration of the suppression order on the basis of

a newly prepared “call analysis,” but on June 25, 1971

Judge Waddy adhered to his order.

The Court of Appeals vacated Judge Waddy’s

suppression order on June 27, 1974, and remanded

with instructions to consider additional evidence and

the “call analysis” in light of the minimization

standards for testing it announced in United States v.

James, 161 U.S. App. D.C. 88, 494 F.2d 1007, cert.

denied 419 U.S. 1020 (1974). 164 U.S. App. D.C. 125.

504 F.2d 194 (D.C. Cir. 1974) (“Scott I) (App. oi).

On remand, Judge Waddy held hearings from October

15 to October 18, 1974 and filed unpublished findings

of fact and conclusions of law on November 12, 1974

again suppressing the wiretap evidence (App. im). On

July 25, 1975, the Court of Appeals again reversed the

suppression order and remanded for trial. 170 U.S.

App. DC, 158, 516 F.2d 751 (1975) (“Scott II’)

(App. @). The Court of Appeals denied rehearing en

banc. (App. @®). This Court denied certiorari to review

the Scott // decision, 425 U.S. 917 (1976), with Mr.

Justice Brennan, Mr. Jugtjce Marshall, and Mr. Justice

Powell dissenting. (App. &).

After the denial, the case returned to the district

court and went to trial after:speedy trial motions were

——

denied. Following a non-jury trial on stipulated facts,

Judge Waddy found Scott guilty of the sale or purchase

of narcotics not in the original stamped package in

violation of 26 U.S.C. 4704(a) and Thurmon guilty of

conspiracy to sell narcotics in violation of 26 U.S.C.

7237(b) and 4705(a),? sentencing both to ten years

impnsonment. The Court of Appeals opinion of March

29, 1977 affirming the convictions is unreported. This

Court granied certiorari on October 11, 1977.

STATEMENT OF THE CASE

A.Wiretap Procedure

1. Applications

On the basis of information obtained from in-

formants and prior investigation, the Government

applied on January 24, 1970 to District Judge Smith

for an order to wiretap telephone number aid. 2948,

registered to Geneva Thornton* and located in a

residence at 1425 N Street, #603, Northwest, Washing-

ton, D.C. The Government alleged probable cause to

believe that Thurmon, Alphonso H. Lee (“Lee’’), and

others were committing narcotics offenses and using

telephone number 483-2948 in connection with such

*The statutes under which Petitioners were convicted were

repealed in connection with the enactment of the Comprehensive

Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292,

21 U.S.C. §840 (1970).

* Also known as Geneva Jenkins, girlfriend of Thurmon, who

lived at the same address.

offenses. The affidavit of special agent Glennon L.

Cooper (“Cooper”), in support of the wiretap applica-

tion listed the primary suspects of the ipyestigation,

including Scott and Thurmon. (App. ) Cooper

claimed the wiretap would reveal “the details of a

scheme used to smuggle narcotics into the United

States, transport such narcotics into the Washington,

C. area and distribute them in [that] area.” (App.

) Although Coopet.claimed Thurmon was a local

drug trafficker (App. &@), the initial twenty day wiretap

was sought on his telephone (registered to Geneva

Thornton) because Lee, claimed to bring drugs into the

Washington area, was hospitalized and had temporarily

shifted. his business calls to the 483-2948 number.

(App. B®).

2. Orders

Based on Cooper’s affidavit and the supporting

affidavit of Assistant United States Attorney Sullivan

(“Sullivan”), on January 24, 1970 Judge Smith

authorized a wiretap of the Thurmon telephone for

twenty days, with the provision required by 18 U.S.C.

§2518(5) (1970), that the interception “shall be

conducted in such a way as to minimize the

interception of communications not otherwise subject

to interception under this chapter.” (App. ). He

required progress reports every five days. (Ibid.)

‘Application was made for 20 days. A typographical error

resulted in the authorization of a 30-day intercept, but the

Government applied for an extension after 20 days.

After Lee was released from the hospital. the

Government applied to Judge Smith February 4, 1970

for permission to tap Lee’s two telephones at 5195

Linnean Terrace. Northwest, Washington, D.C. (App.

84) On February 4, 1970, Judge Smith authorized

wiretap of the two Lee telephones, again requiring

minimization of the interception of non crime-related

conversations and five day progress reports.

On February 13, 1970 the Thurmon wiretap was

extended. (App. ai

3. Reports

The Government submitted five day reports designed

to detail the nature of the communications intercepted,

demonstrate what progress had been made toward

achievement of the authorized objective and the need

for continued interception. For the most part, the

reports simply reveal the number of calls intercepted

during delineated time spans and state which of those

calls were considered narcotics related. The reports did

not, however, reveal the monitoring agents’ assessment

that 60% of the calls were not narcotics related, that all

calls were listened to, and that no efforts were made to

®*A few reports summarize segments of taped conversations

revealing interstate connections and other matters pertinent to

identification and verification of the various conspirators. E.g.,

February 8 report, February 13 report. The incompleteness and

inaccuries of the reports and their effect on the minimization

issue before the district court will be discussed in the argument,

infra.

10

exclude or develop categories to exclude non-pertinent

calls.

The Thurmon and Lee wiretaps continued until

February 24, 1970, when Thurmon and Scott were

arrested.

B. Proceedings After Indictment

1. Pre-Trial Motions To Suppress

Judge Waddy held hearings in April, 1971 (“the 1971

hearings”) on several pre-trial motions, including one to

suppress all wiretap evidence on the ground that the

monitoring agents failed to minimize the wiretap

intrusions. On April 29, 1971, he granted the motion to

suppress for lack of minimization, stating that the

agents in charge of the interceptions “did not even

attempt ‘lip service compliance’ with the provision of

the order and statutory jnandate, but rather completely

disregarded it.”’ (App. » Judge Waddy found that the

monitoring agents clearly understood the . Wiretap

orders’ requirement of minimization. (App. = Judge

Waddy based his findings upon the testimony of

Cooper, the agent in charge of the Thurmon wiretap

operation, who was the sole witness on the minimiza-

tion issue at the April hearings. Cooper testified that he

understood Judge Smith’s order “to restrict [the

intercept] to conversations relating to narcotics” and so

instructed the agents manning the intercept.’

"Cooper stated that the agents were specifically instructed to

monitor “‘all calls except for those which [fall] into a privileged

nature, certain restricted types of calls,” (1971 Tr. 308).

1]

Judge Waddy found that virtually all conversations

were recorded and approximately 60% were completely

unrelated to narcotics. Ibid. Moreover, he examined

specific instances where the intercept should have been

cut off, citing calls between Geneva Jenkins and her

mother as one example.* Judge Waddy’s findings relied

on Cooper’s admission that, although none of the cited

conversations appeared narcotics related, there was no

attempt to cut off interception. (1971 tr. 350-53).

Judge Waddy rejected the Government’s reliance on the

reports to Judge Smith, finding that they did not reveal

the agents were failing to minimize and, in fact, were

listening.,to and recording in full all conversations.

(App. . Finally, Judge Waddy noted that “(t]he

record is devoid of any attempt, no matter how slight,

to minimize the interception of unauthorized calls.”

(App. MB) Judge Waddy relied particularly on Cooper’s

testimony that no exercise of discretion by any

monitoring agent ever resulted in non-recordation.’

8 Judge Waddy cited other calls, such as a Thurmon call to the

bank and a call to the weather bureau, as among those where the

intercept clearly should have been cut off. (App. wn

%Cooper stated that “it was up to the agent to listen to the

conversation and determine what type of conversation it was,”

(1971 Tr. 318), and that he “made phone calls to Mr. Sullivan

relating to pertinent information which had been revealed as a

result of the intercept.” (1971 Tr. 30). He further testified that

no call was ever made to Sullivan to limit the discretion of any

agent during the surveillance. (1971 Tr. 321). The tap was cut

off on one occasion but only because a malfunction had caused

the intercept to be placed on the wrong telephone line. (1971

Tr. 321; 1974 Tr. 681).

2. Motion For Reconsideration

On May 25, 1971 the Government moved for

reconsideration on a legal memorandum prepared by

Assistant United States Attorney Kellogg (“Kellogg’’)

which contended that “the peculiar characteristics’ of

the conspiracy required that “nearly all calls” be

recorded. (Gov’t motion at 2). The Government offered

a “call analysis” to refute the assumption that the calls

were 40% narcotics related and 60% non-narcotics

related and to demonstrate that all calls could

reasonably have been intercepted and contended that

only a very small percentage of the intercepted calls

properly should have been cut off. Finally, the

Government contended for the first time persons who

had no innocent conversations intercepted lacked

standing to demand suppression. Judge Waddy denied

the Government’s motion for reconsideration on all

ounds. (App. .

gr pp coed

3. First Government Appeal — Scott |

After oral argument of the first interlocutory appeal

the court of appeals delayed decision in Scott / until it

decided similar minimization issues in its then-pending

case Of United States v. James, 161 U.S. App. D.C. 88,

494 F.2d 1007, cert. denied 419 U.S. 1020 (1974).

On June 27, 1974, after James was decided, the

Court of Appeals released its Scott J opinion, affirming

Judge Waddy on the standing issue. 504 F.2d 194, 197,

but concluding, on the minimization issue, that Judge

Waddy had not applied the James, standard. The Court

13

remanded Scott / to Judge Waddy for hearing under the

newly promulgated James standard that minimization

was Satisfied if the agents made good faith efforts to

minimize and if those efforts were reasonable.'® 504

F.2d at 198; see United States v. Tortorello, 480 F.2d

764, 784 (2nd Cir.) cert. denieti, 414 U.S. 866 (1973).

The Court instructed Judge Waddy to accept evidence

that would aid in assessing the reasonableness of the

agents’ conduct, including, if he was convinced of its

validity the “‘call analysis.”

4. fhe 1974 Remand Hearings

On remand, Judge Waddy held four days of hearings

from October 15-18, 1974 (“the 1974 hearings’),

concerning almost exclusively, the minimization issue.

Cooper and Kellogg were the only two witnesses called.

On November 12, 1974, Judge Waddy issued findings of

fact, conclusions of law and an order (App. , again

suppressing all of the calls intercepted.

Judge Waddy found that while Cooper and the other

agents knew that the statute and Judge Smith’s orders

required minimjzation, they made no attempt to

comply, (App. &@) and showed no regard for privacy

and did nothing to prevent unnecessary intrusion. Ibid.

The Court directed that the District Court assess the

reasonableness of the agents efforts in light of the purpose of the

wiretap and the information available to them at the time of the

interceptions. 504 F.2d at 198. The Court emphasized that

“(t]he reasonableness of agents’ attempts to minimize must be

judged on a considerably more particularized basis . . .” than that

utilized by the District Court. Ibid.

14

“An examination of the totality of the conduct

of the monitoring agents in this case during the

duration of the authorized interception reveals a

knowing and purposeful failure to comply with or

even attempt to comply with the minimization

requirements of theystatute and the order of

authorization. (App. Hj)

At the hearing, Cooper had again testified that while

he and the other agents knew that Judge Smith had

ordered them to minimize, they took no steps to do

so.'' The instructions under which the agents operated

were to intercept and record every call, except for

certain classes of privileged communications. (lawyer-

client, doctor-patient and priest-penitent'?). Since no

''1974 Tr. 97-98, 324-35. After Kellogg’s testimony, Judge

Waddy recalled Agent Cooper to answer one question. BY THE

COURT: The question I wish to ask you is this, whether at any

time during the course of the wiretap — of the intercept, what if

any steps were taken by you or any agent under you to

minimize the listening? ANSWER: Well, as I believe | mentioned

before, | would have to say that the only effective steps taken

by us to curtail the interception of conversations was in that

instance where the line was connected to — misconnected from

the correct line and connected to an improper line. We

discontinued at that time. QUESTION: Do I understand from

you then that the only time that you considered minimization

was when you found that you had been connected with a wrong

number? ANSWER: This is correct, Your Honor.

'21974 Tr. 90-97, 190. QUESTION: So what I am saying is

that regardless of the nature of the call, except those three

privileged categories, all calls were to be recorded whether

narcotics — related, or otherwise, preserved and then passed on

to review by Mr. Sullivan, is that correct, sir? ANSWER:

Basically that is correct, sir. Tr. 95.

15

privileged communications were encountered, Agent

Cooper admitted intercepting all 384 calls made or

received during the period of the tap. Tr. 79, 94-97.

Judge Waddy found that the conclusion that 60% of

the intercepted calls were not narcotics related stemmed

from the classifications of the monitoring agents,'> who

reported to Judge Smith but did not,inform him there

was no attempt to minimize. (App. @®).

Following the court of appeals’ direction, Judge

Waddy admitted the call analysis into evidence. He

found that Kellogg made the call analysis as an

advocate, that it was not shown to contain realistic

tegories for agents to use in manning a wiretap, (App.

) and in fact conflicted with th yeports and

characteristics of the agents. (App. ) He then

concluded that the call analysis was after the fact and

did not show that the .ggents complied with the

minimization order. (App. is .

At the hearings, Kellogg admitted that the call

analysis was purely after the fact, (1974 Tr. 423-424)

without the aid of experts such as narcotics agents

(1974 Tr. 354, 435-36) and was not meant to suggest

that the agents had actually followed such guidelines,

and that, in fact, a seven-value system such as his was

impractical for use by field agents.'* Examination

This finding was pasen Cooper’s testimony to that affect.

1974 Tr. 308-309 (App. ).

41974 Tr. 458-67, 471. KELLOGG: ... The thrust of the call

analysis is purely and simply an after-the-fact analysis, designed

to provide the Court with a means of factually analyzing the

conduct of the agents. It was not in an effort to infer, or assert,

that the agents followed these relatively sophisticated deline-

ations in the course of the intercept. They did no[t], insofar as |

understand. 1974 Tr. 436.

16

indicated discrepancies betwe ie call analysis and the

reports given to Judge Smith. 1974 Tr. 265-288.

Judge Waddy concluded that the failure to comply

with the minimization order was unreasonable and that

18 U.S.C. §2518(10)(a)(iii) spandated suppression of all

the calls intercepted. (App. Fe

“The admitted knowing and purposeful failure

by the monitoring agents to comply with the

minimization order was unreasonable. Such con-

duct would be unreasonable even if every

intercepted call were narcotic-related. The validity

of the search is not to be determined by what is

found.” Ibid.

5. The Second Government Appeal — Scott II

The Government’s appeal from the second syppres-

sion order resulted in another reversal. (App. i) The

Court's opinion, written by Judge MacKinnon, rejected

Judge Waddy’s primary concern with the perception

and failures of the monitoring agents. (App. ) In

substance, the Court uncritically adopted the call

analysis, rejecting examination of agents’ use of

discretion as an impractical means of minimization

during the course of a wiretap even though it conceded

there was no effort to minimize. (App. @)

“To hold that the monitoring agents must make

a determination whether to minimize in the course

of each individual conversation would be an open

invitation to cnminals to escape detection by the

simple device of devoting the initial part of each

call to non-criminal matters. Thus the only feasible

approach to minimization is the gradual develop-

ment, during the execution of a particular wiretap

17

order, of categories of calls which most likely will

not produce information relevant to the investiga-

tion. Until such categories become reasonably

apparent, however, interception of all calls will be

justified under the wiretap authorization.” (App.

43)

The Court conceded that no attempt at all was made

to minimize, but rejected bad faith as a significant

criterion, stating that:

The subjective intent of the monitoring agents is

not a sound basis for evaluating the legality of the

seizure. For example, the agents could publicly

declare their intent to disobey the minimization

provisions of the wiretap order and yet it is

possible that the ultimate interception vill be

found to have been reasonable.” (App. @)

The Court then uncritically adopted the Govern-

ment’s call analysis, and, comparing the James stan-

dards, concluded that the total interception was not

unreasonable. (App.

Although the Court found that the agents had acted

reasonably, it went on to say that if a remedy had been

necessary it would have merely called for suppression of

the non-pertinent calls, and that the Parcotics-related

calls could remain in evidence. (App. @, n.19)

A request for an en banc rehearing was denied with

four judges dissenting. (App. This Court’s denial of

certiorari at the interlocutory stage was accompanied by

Mr. Justice Brennan’s dissenting opinion examining the

minimization issue. (App.

6. Trial

Scott. Thurmon and other defendants went to tnal

on July 15, 1976, and were found guilty of narcotics

violations. The stipulation on which the guilt determina-

tion was based derived from the wiretap evidence.

SUMMARY OF ARGUMENTS

The minimization requirement of 18 U.S.C.

$2518(5) is at the heart of the protections imposed in

Title Il of the Omnibus Crime Control and Safe Streets

Act of 1968, aimed both at protecting individual

privacy and satisfying this Court's expressed distaste for

general searches. The Court of Appeals erred by

concluding minimization could be satisfied by an after

the fact rationalization of how others might have read

the wiretap transcripts. Rather, Congress’ choice of the

exclusionary rule to deter invasions of privacy requires

analysis of whether monitoring agents acted in good

faith and made an attempt at excluding non-pertinent

conversations which was reasonable based on the facts

they perceived. Here, the district judge found to the

contrary; there was no good faith attempt to minimize

and, instead, total interception, and, since the agents

themselves categorized 60% of the intercepted calls as

non cnme-related, reasonable minimization efforts

would require them to act on the basis of their own

perceptions. Even accepting the after the fact “call

analysis”, it did not justify total interception when

examined on the criteria used in the courts of appeals

to test out good faith efforts to minimize.

- ?

.

19

Suppression of both crime related and non-crime

related calls is the explicit statutory remedy for failure

to minimize, a remedy particularly appropriate where,

as here, the failure to minimize resulted, in effect, in a

general search. For the same reason, the explicit

statutory grant of standing to all victims of unlawfully

executed wiretaps should not be rewritten by the court

to cover Only those whose innocent conversations were

overheard. The suppression remedy protects both those

victimized by an unlawful search producing tangible

results and those searched without production of such

results.

ARGUMENTS

I.

A REVIEWING COURT MAY NOT FIND

COMPLIANCE WITH MINIMIZATION RE-

QUIREMENTS BY ACCEPTING AN AFTER

THE FACT ANALYSIS AIMED AT DEMON-

STRATING THAT NARCOTICS AGENTS

COULD HAVE CONSIDERED MOST CALLS

CRIME RELATED, WHEN THE MONITOR-

ING AGENTS ACTUALLY CONSIDERED

MOST CALLS TO BE NON-CRIME RE-

LATED AND NEVERTHELESS MADE NO

EFFORT TO MINIMIZE INTERCEPTION

OF THOSE CALLS.

A.The Error In The Court Of Appeals’ Analysis

The Scott Il court saw “objective reasonableness”

after-the-fact as the decisive factor in testing agents’

compliance with minimization requirements; whether

20

the agents subjectively intended to minimize their

interceptions, the bad faith of the monitoring agents in

not instituting any minimization procedures and the

agents’ assessment of which calls were crime related

were thus deemed essentially irrelevant.

The explicit terms of Section 2518(5) mandate that

monitoring agents take affirmative steps to minimize

intrusions in executing valid wiretap interceptions.

Section 2518(5), in turn, was made a part of the 1968

act because of congressional concern that authorized

electronic surveillance not be conducted in a manner

that violates the constitutional guidelines announced in

Berger v. New York, 388 U.S. 41 (1967), and Katz ».

United States, 389 U.S. 347 (1967). S. Rep. No. 1097,

90th Cong. 2d sess., 102 (1968); [1968] U.S. Code,

Cong., & Ad. News, pp. 2112, 2153, 2163.

In Berger, this Court condemned New York’s wiretap

statute because it gave wiretapping police a “roving

commission to seize any and all conversations.” 388

U.S. at 59. The distaste for the wiretap’s “general

search” expressed in the majority opinion and its

recognition of the unique pervasiveness of an eavesdrop

search, led at least one member of the Court to suggest

that the Court had, by indirection, made constitutional

wiretaps impossible. 388 U.S. at 113 (Mr. Justice White

dissenting). Mr. Justice Stewart’s opinion in Katz settled

some of those fears, but it, too, emphasized the need

for careful procedures to prevent overreaching wiretap

searches, pointing to the close supervision in Osborne y.

United States, 385 U.S. 323 (1966). It was to the

Court’s expressed distaste for general searches by

wiretap that the Congress responded with §2518(5), in

an effort to avoid unwarranted police invasions of

21

privacy by forcing wiretapping police themselves to take

steps to protect privacy. United States v. Focarile, 340

F. Supp. 1033, (D. Md.), aff'd sub nom United States

vy. Giordano, 469 F.2d 522 (4th Cir. 1972), aff'd 416

U.S. 5U5 (1974). The legislative history of Title III of

the Omnibus Crime Control and Safe Streets Act of

1968 demonstrates its goal of preventing unwarranted

invasions of privacy by regulating police conduct,'* by

establishing companion safe guards that law enforce-

ment officials must follow in executing a lawful

wiretap. E.g., §§2518(3)(a), (b), (c) and (d). These

provisions were designed to assure that

the order will link up [a] specific persons, specific

offense, and specific place. Together [the provi-

sions of Title III] are intended to meet the test of

the Constitution that electronic surveillance tech-

niques be used only under the most precise and

discriminate circumstances, which fully comply

with the requirement of particularity.

S. Rep. No. 1097, 90th Cong., 2d sess., 102 (1968);

see Bynum vy. United States, 423 U.S. 952, 952 (1975)

(Mr. Justice Brennan dissenting from denial of certi-

orari).

Although Congress focussed. especially in the minimi-

zation requirement, on the conduct of monitoring

'STitle Ill pronounces dual purposes: (1) protecting the

privacy of wire—communications, and (2) delineating on a

uniform basis the circumstances and conditions under which the

interception of wire ...communications may be authorized.” S.

Rep. No. 1097, 90th Cong., 2d sess., 66 (1968); see Note,

Minimization of Wire Interception: Pre-Search Guidelines and

Post-Search Remedies, 26 Stan. L. Rev. 1411, 1413-14 and n.17

(1974).

to

to

agents, the court of appeals in this case ignored that

focus for after the fact analysis of the contents of the

wiretap transcripts. Congressional belief that minimiza-

tion should be tested during the course of the wiretap,

however, and not validated by the ultimate results is

evident in its recognition that the judiciary must

supervise the interception of wire communications in

order that the privacy of innocent persons is protected.

See 18 U.S.C. §2518(6) (1970); [1968] U.S. Code.

Cong. and Ad. News, pp. 2112, 2177, 2192-93. This

continuing check on the progress and continued need

for the surveillance emphasizes the paramount Congres-

sional concern that Title III wiretaps be administered in

good faith so as to stay within the constitutional

standards promulgated by this Court in Berger and

Katz.

Congress consciously chose the exclusionary rule in

section 2515 to enforce the limitations Congress

imposed on wiretapping. Gelbard v. United States, 408

U.S. 41, 48-49 (1972).'® This Court has repeatedly said

that the “prime purpose of the [exclusionary] rule, if

not the sole one, is to deter future unlawful police

conduct.” United States v. Calandra, 414 U.S. 338, 347

(1974). See also Stone v. Powell, 428 U.S. 465, 485-86

and n.23 (1976); United States v. Janis, 428 U.S. 433,

446 (1976); United States v. Peltier, 422 U.S. 531,

536-49 (1975), Bivens v. Six Unknown Named Agents,

403 U.S. 388, 413 (Chief Justice Burger, dissenting):

See Berger v. New York, 388 U.S. 41, 50-51 (1967).

Any rule primarily concerned with police deterrence

must make its results turn on the intention of the

16 Rep. No. 1097, 90th Cong., 2d sess., 96 (1968).

23

police at the time they acted and the reasonableness of

their perceptions and actions in light of the facts

known to them; the model rewards reasonable good

faith efforts and punishes those which are in bad faith

or are unreasonable. See, e.g., Michigan v. Tucker, 417

U.S. 433, 446-447 (1974): United States v. Peltier, 422

U.S. at 537-38, 542 (1975). This need to examine the

conduct of the police in light of their intention and the

facts known to them applies with equal force under

Title II]. Under Fourth Amendment deterrent rationale

and Title III, after-the-fact analysis of the results of

police conduct is irrelevant if the officers failed in bad

faith in execution of their responsibilities'’ or acted

unreasonably.

Circuit Judge Robinson, in explaining his vote to

review Scott II en banc, noted that “[I]f objective

reasonableness is the standard [for evaluation of

minimization compliance] there is grave danger that

determinations of reasonableness will be dictated by

hindsight evaluations of evidence uncovered by wire-

taps. This, in turn, is bound to generate a strong

temptation to wiretap first and then use the fruits of

the interception in an effort to.gemonstrate that the

intrusion was justified.” (App. P| All of the circuits

passing on the question have likewise concluded that, in

minimizca.ion cases, results turned on the good faith or

bad faith of monitoring agents at the time of the

wiretap and the reasonableness of their conduct in light

of the facts known to them; courts have refused to

"Of course, an illegal search or seizure may not be validated

by what is found. See United States v. Johnson, 333 U.S. 10

(1948); United States v. DiRe, 332 U.S. 581 (1948).

suppress for failure to minimize even in_ total

interceptions and despite being shown categories of non

crime-related conversations which, in hindsight might

have been cut-off.'® The same analysis, of course,

mandates suppression where, as here, there was both

bad faith failure to attempt minimization and a

perception that a substantial majority of the intercepted

conversations were non crime-related.'®

Judge Waddy specifically found that the “‘call

analysis” did not reflect the understanding of the

monitoring agents at the time of interception and did

q gnalyze the intercepted calls as they did. (App.

) His finding rested on questioning of Cooper, the

'8in United States v. Chavez, 533 F.2d 491 (9th Cir. 1976),

for example, the ninth circuit rejected the use of hindsight

analysis to demonstrate particular calls that were not conspiracy-

related. Id. at 494 (that is not the proper test). See United States

vy. Armocida, 515 F.2d 29, 45 (3rd Cir.) (not determinative that

hindsight reveals a number of calls that could have been

terminated at an earlier time where agents exercised their

discretion in good faith) cert. denied 423 U.S. 858 (1975);

United States v. Vento, 533 F.2d 838, 853 (3rd Cir. 1976),

(minimization is not to be judged by a rigid hindsight, but must

consider the problems confronting the officers at the time of the

investigation); United States v. Cox, 462 F.2d 1293, 1301 (8th

Cir. 1972) cert. denied 417 U.S. 918 (1974). (No failure to

minimize even though in retrospect it is clear that a substantial

portion of calls had no evidentiary value).

'9Mr. Justice Brennan argued for an earlier grant of certiorari

to review Scott Il both because of the opinion’s derogation of

the importance of the monitoring agents’ good faith attempt to

comply and its retroactive validation of a Fourth Amendment

search on the basis of what was uncovered by the search. 425

U.S. 917, 924 (1975).

%

25

agent in charge, who testified that the call analysis

categories were not indicative of the agents’ thinking

and information, (1974 Tr. 332-334) and of Kellogg,

the call analysis author, who testified that it was not

“an effort to infer or assert that the agents followed

these relatively sophisticated delineations in the course

of the intercept.” (1974 Tr. 436). In fact, they both

testified that the call analysis disagreed with the

characterizations of the agents, (1974 Tr. 143-44, 375)

who, at the time of the intercepts, found 60 percent of

the calls not jarcotics related (1974 Tr. 308-11,

374-76) (App. —

When these findings are put together with Judge

Waddy’s findings that the monitoring agents “made no

attempt .o comply with the minimization order’ and

did nothing to avoid unnecessary intrusion” (App.

=) it is apparent he had no choice but to find

failure to minimize.

Judge Waddy’s findings preclude use of the “call

analysis” unless the Court completely rejects the mode

of analysis of minimization discussed above.

The Scott II opinion’s wholesale acceptance of this

retrospective statistical analysis could not support its

result for several other reasons. First, the district court

found that the call analysis contained errors of

7° Although the overall 40% - 60% breakdown of intercepted

calls is reflected numerically in individual reports to Judge Smith

(e.g., report of Jan. 20, 1970, App. 81, reporting number of calls

and categorizing by number), he was never given an overall

percentile breakdown.

7! All of the findings are thoroughly supported by the record.

See pp. supra.

| -

26

characterization and factual inaccuracies and did not

represent information known to the agents at the time

of interception.

Even if completely accepted, the call analysis does

not place this wiretap on the acceptable side of the line

when compared to the law in other circuits. The courts

of appeals have proceeded on a case-by-case basis,

evolving a general standard of reasonableness. See e.g.,

United States v. Daly, 535 F.2d 434, 441 (8th Cir.

1976); United States v. Clerkley, 556 F.2d 709, 716

(4th Cir. 1977); United States v. Armocida, 515 F.2d

29, 42 (3rd Cir.) cert. denied, 423 U.S. 858 (1975);

United States v. Cox, 462 F.2d 1293, 1300; United

States v. Quintana, 508 F.2d 867, 873-74 (7th Cir.

1975): United States v. James, supra, 494 F.2d 1007,

1018: see also [1968] U.S. Code Cong. Ad. News, pp.

2112, 2192. They are in substantial agreement that the

statute is deemed to be satisfied if “ton the whole the

agents have shown a high regard for the right of privacy

and have done all they reasonably could to avoid

unnecessary intrusion.” United States v. Tortorello, 480

F.2d 764, 784 (2nd Cir.) cert. denied, 414 U.S. 866

(1973), quoted approvingly in Clerkley, supra, 556 F.2d

at 716; Armocida, supra, 515 F.2d at 42; James, supra,

494 F.2d at 1018 and Quintana, supra, 508 F.2d at

873.

They have tested the reasonableness of agents’

conduct against at least three principle factors: (1) the

nature and scope of the criminal enterprise under

investigation; (2) the Government’s reasonable expecta-

tion as to the contents of, and parties to, the

conversations; and (3) the degree of judicial supervision

by the authorizing judge. Clerkley, supra, 556 F.2d

27

709, 716; James, supra, 494 F.2d 1007, 1019:

Quintana, supra, 508 F.2d 867, 874-75. The location

and operation of the tapped telephone is also relevant.

James, supra, 494 F.2d 1007, 1020. Cf. Bynum, supra,

485 F.2d 390, S501 (since defendant knew of tap he

had no expectation of privacy). All these factors apply

to the actions and knowledge of the monitoring agents

in relation to the particular conspiracy being investi-

gated at the time of the actual wiretap surveillance.

In Scott I the court of appeals directed Judge Waddy

to examine minimization in light of the foregoing

factors. Even based solely on those pertinent factors, he

found a violation. Although the court of appeals in

Scott II reached a contrary conclusion, it had no right

to overturn Judge Waddy’s findings without concluding

they were clearly erroneous. Rule 52, Fed. R. Civ. P.

1. Scope of the Criminal Enterprise Under Investigation.

Judge Waddy correctly found that the conspiracy

under investigation was of lesser dimension than

Originally anticipated. (App. i, The Government

Originally believed and said in its wiretap application

the wiretap would uncover a major interstate and

international narcotics operation. (App. see also

App. . These views changed when the intercepts

revealed only local purchases within the Washington,

D.C. area. (App. =).

28

2. Reasonable Expectations Regarding Conversations.

More extensive monitoring is permitted where

guarded or coded language is used to change highly

relevant conversations into seemingly innocent ones.

Judge Waddy found that according to the reports and

classifications of the monitoring agents their perception

was that 60% of the intercepted calls were not narcotic

related. (App. The only references to coded

language in the monitoring agents’ reports revealed an

ability to understand such language, (Feb. 3, 1970

Report (noting that “female” is a code word for

cocain); Feb. 8, 1970 Report (noting that a “thing

which would take ten” is slang for dilution of

narcotics)).

3. Location and Operation of the Subject Telephone.

Judge Waddy found that the telephones for which

the interceptions were authorized by Judge Smith were

located in residences, and were not the type of

‘business’ phone h less entitled to protection in

James, supra. (App. *

4. Judicial Supervision by the Authorizing Judge.

Judge Waddy correctly found that the judicial

supervision was inadequate to justify total interception

because “Judge Smith was never informed thgt agents

were making no attempt to minimize.” (App. HM)

The legislative history of Title III directs that reports

should be utilized specifically to show “‘progress toward

ee

29

achievement of the authorized objective and need for

continued interception.” [1968] U.S. Code and Ad.

News, pp. 2112, 2192-93. Thus the authorizing judge

should be informed of all matters pertinent to the tap.

Here, the reports failed to inform Judge Smith that no

attempts to minimize were being made and that the

conspiracy was of smaller dimensions than originally

anticipated. As a result, he was denied the information

necessary to check on whether the agents were

minimizing. Judicial supervision, of course, suggests not

only that the authorizing judge receive accurate reports,

but also that he inquire into minimization efforts. In

this case, the record reflects no such inquiry by the

authorizing judge despite the reports’ information that

most of the intercepted calls were not crime-related.

THE AGENTS’ BAD FAITH FAILURE TO

COMPLY WITH THE MINIMIZATION OR-

DER REQUIRES THE SUPPRESSION OF

ALL INTERCEPTED CONVERSATIONS.

Judge Waddy recognized that the agents did not

comply with Judge Smith’s order to minimize and

properly concluded after both suppression hearings that

18 U.S.C. §2518(10)(a)(iii) required suppression of all

sof the evidence obtained from the intercepts. (App. MP,

“While the nature of the investigation may warrant

closer listening than in some other type of case it

does not warrant a total disregard of the statutory

requirement and excuse the monitors from at-

tempting to comply with the statutes and order of

uy

30

the court. Failure to comply with the statute and

order of the court renders any evidence obtained

by such failure suppressible. Sabbath v. United

States, 391 U.S. 585.” (App. B)>1

The Court of Appeals, in Scott II, finding the agents’

minimization efforts reasonable, decided that it need

not reach the remedy issue. But it made clear in a

footnote that it disagreed with Judge Waddy and that

“suppression should be limited to the evidence seized

which was beyond the scope of the wiretap authoriza-

tion.” (App. (0.19)

18 U.S.C. §§2515 and 2518(10)a) permit any

aggrieved person to move for suppression of wiretap

evidence on the grounds that:

(i) the communication was unlawfully inter-

cepted;

(ii) the order of authorization or approval...

is insufficient on its face; or

(iii) the interception was not made in conform-

ity with the order of authorization or

approval.

An aggrieved person includes anyone whose conversa-

tion was intercepted or against whom the tap was

directed. 18 U.S.C. §2510(11). We noted earlier

Congress’ policy judgment in §2515 to make suppres-

sion the necessary remedy to protect an individual’s

privacy and to deter unlawful interceptions. Unlike the

case in United States v. Donovan, 97 S.Ct. 658 (1977),

the minimization requirement of §2518(5), for the

reasons noted earlier in this brief, is at the core of the

protections Congress imposed to protect privacy and to

satisfy this Court’s constitutional concern.

——_

31

Because the agents failed to comply with the

minimization order, §2518(10)(a){i) and (iii) are clearly

applicable. Judge Smith’s wiretap order specifically

Stated that the wiretaps must be conducted in such a

way as to minimize interception of galls not relating to

the purpose of the wiretap. (App. 9, Yet Agent

Cooper testified that, despite the fact that he and the

other pts knew of the minimization requirement,

(App. shaadi, his instructions were to intercept and

recgyd ajl conversations, except “privileged”’ ones. (App.

eres There was no attempt made to determine

whether certain calls were not pertinent so_ that

“pertinent intercepts would be terminated. (App.

ca. Not only were Judge Smith’s orders violated,

but they were violated in bad faith. §2518(10)(a)(iii)

requires suppression of all calls so intercepted even

without the finding of no good faith efforts made here.

The Court of Appeals’ suggestion that only non-

pertinent calls should be suppressed derogates from the

congressional goals discussed earlier and the Fourth

Amendment exclusionary rule. Suppression of only

non-pertinent calls could have little, if any, deterrent

value. United States v. Focarile, supra, at 1046. The

Government would have nothing to lose and everything

to gain in condoning general searches of this nature.

Ibid.

At the time of the 1971, hearings, Judge Waddy had

little case precedent to assist him in deciding the

present issue. Yet several courts have recognized the

wisdom of his reasoning and called for total suppression

where there has been a complete failure to minimize.

United States v. Scully, 546 F.2d 255 (9th Cir. 1976):

United States v. Turner, 528 F.2d 143 (9th Cir. 1975);

32

United States v. George, 465 F.2d 772 (6th Cir. 1972):

United States v. Focarile, supra; United States v. Leta.

332 F. Supp. 1357 (D.C. Pa. 1971), rev'd on other

grounds 467 F.2d 647 (3rd Cir. 1972).

Despite the obvious inadequacy of a partial suppres-

sion remedy, several courts have suggested only

non-pertinent calls need be suppressed. United States vy.

Cox, 462 F.2d 1293 (8th Cir. 1972); cert. denied, 417

U.S. 918 (1974): United States v. Sisca, 361 F. Supp.

735 (S.D.N.Y. 1973), aff'd 503 F.2d 1337 (2nd Cir.

1974): United States v. LaGorga, 336 F. Supp. 190

(W.D. Pa. 1971); United States v. King, 335 F. Supp.

§23 (S.D. Cal. 1971) rev'd on other grounds 478 F.2d

494 (9th Cir. 1973) cert. denied, 417 U.S. 920 (1974).

The basis of these cases seems to be a fear of expanding

the exclusionary rule, which Congress did not intend.

See, e.g., United States v. King, supra. They conclude

that only in cases such as Berger or Aatz, where the

interception is void ab initio, rather than in its

execution, is total suppression necessary. Id.

Application of the literal terms of §§2515 and

2518(10), however, is also consistent with the tradi-

tional remedy applied in search cases. It has long been

clear that unlawful execution of a search warrant voids

the fruits of the search. See, e.g., Sabbath v. United

States, 391 U.S. 585 (1968).

The closest analogy in the area of search and seizure

of tangible objects is Aremens vy. United States, 353

U.S. 346 (1957), which provides for total suppression

where a search is so indiscriminate and sweeping as to

be a general search. Basically, however, it is difficult to

compare the search and seizure of tangible objects to

intangible conversations. Berger recognized that the

_~ —

33

latter case presents the greater potential for intrusion

into the individual’s privacy. Once seized, a conversa-

tion cannot be returned to the owner. United States v.

Focarile, 340 F. Supp. at 1047. An interception is

conducted over an extended period of time, and, in

cases like this, does not discriminate. It is more likely

to gather information of personal nature. The intercep-

tion of a wire communication must necessarily be

conducted without the interceptee’s knowledge. This is

not generally the case in a search and seizure of

tangible objects. The greater danger of unnecessary

intrusion requires a remedy that will insure its

prevention. Total suppression must be that remedy.

The courts advocating the partial suppression remedy

have failed to come to recognize the differences

between the seizure of physical objects and an

all-inclusive interception of conversations. Their reliance

on s like United States v. Marron, 275 U.S. 192

(19 in which a prohibition agent authorized to seize

liquor went beyond the scope of the warrant and

unlawfully seized, in addition, a ledger, fails to

recognize the difference. Where a wire interception is so

unreasonably sweeping in scope as to become a

proscribed general search, the search is void and the

evidence must be suppressed. Berger, supra. See also

Note, Minimization and the Fourth Amendment, 19

N.Y.L.J. 861 (1974); Note Minimization: In Search of

Standards, 8 Suffolk U.L. Rev. 60 (1973). Those cases

which distinguish between defects ab initio and defects

in the execution are in error where, as here, the defect

is sO extensive as to make the interception a general

search. When this occurs, the search is just as totally

void and requires the same remedy of total suppression.

34

BOTH SCOTT AND THURMON HAVE

STANDING, AS AGGRIEVED PERSONS TO

INSIST ON SUPPRESSION UNDER

§ 2518(10)(a).

In its brief in opposition to the petition for a writ of

certiorari, at p. 6, the Government argues that only

Thurmon has standing to seek suppression of the

wiretap evidence, because Scott was not overheard in a

non crime-related conversation. The Government raised

this argument in Scott I, and the Court of Appeals

rejected it in the following language:

“There appears to be no question that each of

the appellees in this case is an “aggrieved person”

within the meaning of the statute. As such, each is

protected by the stringent safeguards of Title III,

including the requirement that agents minimize

interception of conversations that they are not

authorized to intercept. Each aggrieved person is

entitled to question whether the statutory minimi-

zation requirement has been satisfied and, on

proving that it has not, to move to suppress a

communication on the ground that “the intercep-

tion was not made in conformity with the order of

authorization or approval.” (App. J)

Section 2510(11), of course, defines an “aggrieved

person”’ as a target of the interception or a party whose

conversation was intercepted. As discussed above,

Sections 2518(10)(a)(i) and (iii) mandate suppression

sought by an aggrieved person when the communication

was unlawfully intercepted or when interception did

not conform with the authorization order.

ima 4

35

The Government’s proposed standing rule would

twist the meaning of the relevant sections in a way not

suggested in the legisiative history. See United States v.

Bellosi, 163 U.S. App. D.C. 273, 282 n.22, 501 F.2d

833, 842, n.22 (1974). See also United States y.

Giordano, 469 F.2d 522 (4th Cir. 1972), aff'd, 416

U.S. 505 (1974). The only justification offered is the

statement by this Court in Alderman vy. United States,

394 U.S. 165, 175, n.9 (1969), that the legislative

history of Title III evidences no intent to go beyond

the traditional standing notions discussed in the

Alderman opinion. Both Thurmon and Scott, however,

meet those criteria, since their conversations were

intercepted unlawfully. Moreover, as the Court of

Appeals pointed out in Bellosi, Congress also sought to

incorporate the standing concepts of Jones v. United

States, 362 U.S. 257 (1960), excluding from suppres-

sion those claiming benefit from unlawful acts directed

at somebody else. 163 U.S. App. D.C. at 282, n.22,

501 F.2d at 842 n.22.

Ultimately, the Government’s standing argument

must fail for the same reason the suppression remedy is

mandated by the act; one is victimized by a wiretap

executed in violation of §2518(5) whether innocent

conversations are overheard or not. It is the manner of

interception not what is intercepted which creates the

violation of the statutes and requires the remedy. By

analogy to the law involving search for tangible objects,

Scott, accepting the Government’s view, is like the

victim of a search which bore no fruits. He is still

36

“agerieved’’ because his privacy interest was invaded.??

Because of the unique nature of wiretaps, however, the

entire interception is available for suppression, as the

statute plainly dictates. ‘

CONCLUSION

For the foregoing reasons, the judgments below

should be reversed.

Respectfully submitted,

SAMUEL DASH

MICHAEL E. GELTNER

Georgetown University Law Center

Appellate Litigation Clinic

600 New Jersey Avenue, N.W.

Washington, D.C, 20001

Tele: (202) 624-2897

JOHN A. SHORTER, ESQ.

508 Sth Street, N.W.

Washington, D.C, 20001

Tele: (202) 638-4040

Attorneys for Petitioners

211 is not at all clear that Scott was intercepted only in

criminal conversations. Judge Waddy’s decision rested solely on

the Thurmon wiretap, finding the rest of the evidence, including

the Lee wiretaps, to be derivative and, hence, unlawful. The

Government's assertion of no innocent call by Scott, we assume,

relates to the Thurmon wiretap, because the Lee wiretap

transcripts are not in evidence. If the Court were to accept the

Government's analysis of the standing issue now but accept

petitioners’ minimization argument, the appropriate remedy

would be to remand to determine whether Scott was party to

innocent calls on the Lee line Scott, of course, was not in a

position to urge this analysis before, because, after the Scort //

decision, he had no basis to claim illegality in the district court,

and the court of appeals, in Scott /, had rejected the standing

claim urged here.

——Se ee aaa

37

CERTIFICATE OF SERVICE

| hereby certify that a copy of the attached Brief of

Petitioners was mailed on December 6, 1977 to:

Solicitor General

Department of Justice

Washington, D.C, 20530

MICHAEL E, GELTNER