# Petitioners Brief — Scott v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2123%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 128

## Text

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

.

ul

fy

TABLE OF CONTENTS

Wee Gr EEE we ccc ceccccccesccccses
INTRODUCTORY STATEMENT ................-.-
SPE ce cic ccc cc ccccsccccececes
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

<= es es F se ee. Ss Ss se ee Oe

Se 6&6 ee ae 6.68 2.6 6 ee 6 6 ¢

ew 2 we oe ee ©... ee ee ee ae eS a eee 8 6 sé

*_* *

i oe

(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2123%3A5. Public record. Not legal advice.