Amicus Brief — Scott v. United States
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IN THE Supreme Court, U. $,
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
NO. 76-6767
FRANK R. SCOTT and BERNIS L. THURMON,
Petitioners
UNITED STATES OF AMERICA,
Respondent
ON TO ERTIORARI TO THE T TATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA
BRIEF FOR CHLOE V. DAVIAGE AS AMICUS CURIAE
Peter S. Smith
Adrienne E. Volenik
Maryland Juvenile Law Clinic
500 W. Baltimore Street
Baltimore, Maryland 21201
Counsel for Amicus Curiae
Il.
[I
TABLE OF CONTENTS
Interest Of Chloe V. Daviage-----------------
‘Opinions Be loW------------------- ~~ ~~ ee
purisdiction wo ee ee ee ee
Constitutional And Statutory Provisions
INVO]VCd + 99m wn nn ne a on en ne ee ee eee
Questions Presented-<--<<-<<<<<<-<<eee-e"-----
USCateMeN tooo ooo ooo oooooeeoooroooessocosocese
Summary Of ArgquMment---<<---<<<<<<<<<-<<<----
Daviage And Scott, As Parties To Intercepted
Telephone Calls, Have Standing To Move To
Suppress Communications Seized In Viola-
tion Of The Wiretap Order. ---<-<<<<<<<<-<<---
The Government's Round-The-Clock Sur-
veillance, Entailing Interception Of
Every Conversation With No Good Faith
Attempt To Minimize The Interception
Of Non-Pertinent Communications,
Constituted A Blatant Violation Of
18 U.S.C. § 2518(5) . ------- 2-22 --------- =
A. The Constitutional Significance Of
The Minimization Issue. ----<<<-<<<<<-----
B. Standards Governing The Determina-
tion Of Compliance With 18 U.S.C.
§ 2518 (5) . eer enn mm we own meee eee eoeeo--
l. The Good Faith Test. ----------------
2. The Application Of The Good Faith
Test In The Scott Litigation. -------
3. Reasonableness Of The Efforts To
Minimize Interceptions Of Non-
Pertinent Communications. --<-<--------
i) Scope Of The Criminal Enterprise
Under Investigation. -------------
ii) Location and Operation Of The
Wiretapped Telephone. -----------
iii) Government Expectation Of The
Contents Of The Calls. ---------
iv) Judicial Supervision By The
Authorizing Judge. --------------
Because The Government Made No Good Faith
Attempt To Abide By The Minimization Re-
quirements, This Case Is An Appropriate
One In Which To Invoke The Sanction Of
Complete Suppression. -----<9e<+<<<<<------
A. The Statutory Suppression Mechanism.--
B. The Government's Suppression Renesy Is
Inadequate--- --- << ene nn nn ne en en nnn
10
25
43
44
© ii «
C. The Policy Underlying 18 U.S.C.
§ 2515 Warrants Suppression Of
The Entire Intercept. ----------------
D. The Minimization Requirement Of 18
U.S.C. § 2518(5) Plays A Central Role
In Enforcing The Privacy Requirements
Of Title III. -----------------~-------
E. Failure To Comply With The Minimization
Provision Of 18 U.S.C. § 2518(5) Re-
quires Suppression Of The Entire In-
COLCEDt. me mer n nn nn nn nn nn nn ee = ==
|} Conclusilon]-<<<<<--<<<<2<2222202--- ~~ eee
TABLE OF CITATIONS
| Cases
jAdams v. Maryland, 347 U.S. 179 (1954) -------
Alderman v. United States, 394 U.S. 165
(1969) -- ee en nn nn a ee = 16
\Berger v. New York, 388 U.S. 41 (1967) ------- 5,16,27-29
\Boyd v. United States, 116 U.S. 616 (1886)---
yars v. United States, 273 U.S. 28 (1927)---
Bynum v. United States, 423 U.S. 952 (1975)--
Camara v. Municipal, 387 U.S. 523 (1967) -----
Gelbard v. United States, 408 U.S. 41 (1972)-
Goldman v. United States, 316 U.S. 129
Jones v. United States, 362 U.S. 257 (1960)--
atz v. United States, 389 U.S. 347 (1967) -- 5,16,17,20
opez v. United States, 373 U.S. 427 (1963)--
Mapp v. Ohio, 367 U.S. 643 (1961) ------------
rron v. United States, 275 U.S. 192 (1927)-
‘ene v. United States, 302 U.S. 379 (1937)-
a v. United States, 308 U.S. 338 (1939)-
ardone v. United States, 127 F.2d 521 (2d
~“@ir.), cert. denied, 316 U.S. 698 (1942)-
Olmstead v. United States, 277 U.S. 438 (1928)-
On Lee v. United States, 343 U.S. 747 (1952)--
Osborn v. United States, 385 U.S. 323 (1966)--
People v. Brenes, 42 N.Y.2d he 396 N.¥.S.2d 629
Lael v. Fiorillo, 63 Misc. 2d 480, 33}, N.Y.
" ntgomery Cty. Ct. 19 @ euece
|
Page
56
59
61
66
57
,17,19-21
,32,60,61
26
24,41
28
25,61
14,58
26
15,17,19
,21,27-29
32,50,61
26
57,58
54
57
57
57
20,26
26
27,28
34,64
22,23
e iii =
People v. rats. 41 N.Y¥.2d 245, 392 N.Y.S8.2d
) «ss + S++ +++ eee es e226 62 2 &@ = = = = =
People v. Holder, 69 Mise.2d 863, 331 N.Y¥.S8.2d
SS7 (Sup.Ct. of Nassau Cty. 1972) «<=«----
Schwartz v. Texas, 344 U.S. 199 (1952) «-<«<-<-
United States v. Armocida, 515 F.2d 29
(Trd Circ), cert. denied, 423 U.S.
858 (1975) «eee meee meee eee eee eee
United States v. Bellosi, 501 F.2d 833
. . r.
United States v. Best, 363 F.Supp. ll
United States v. Bynum, 475 F.2d 832 (2d
united States v. Bynum, 360 F.Supp. 400
(S DN.Y.) vat?'d, 485 F.2d 490 (2d
Cir.1973), vacated on other grounds,
Tr974
417 u.s. 907°
SSS
United States v. Bynum, 485 F.2d 490 (2d
r. ), Vacated on other grounds,
417 U.S. 903
United States v. Bynum, 513 F.2d 533 (2d Cir.),
ane eee aentee ng enied, 423 U.S. 952 (1975) --------
1099
) Hee eee eee eee eee eee
nited States v. Carubia, 377 F.Supp
>_—--
. . . .
United States v. Ceraso, 355 F.Supp. 126
(M.5. Pa. Toy) ee SC SF SK SH eS eK ee ee ee eS ee |. )
United States v. Ceraso, 467 F.2d 647 (3rd
+ » » Oieetiedtiedid mm me
United States v. Chavez, 416 U.S. 562 (1974)-
United States v. Chavez, 533 F.2d 491 (9th
r.), Cert. denied, 426 U.S. 911
(1976) ee eoeoeeoae «ee eee ee ee eeee eee = oe =
United States vy.
r.
Clerkley, 556 F.2d 709
United States v. Cox, 462 F.2d 1293 (8th
r. , cert. denied, 417 U.S.
918 (19.74) ennneeemem meme meneame nne
United States v. Curreri, 363 F.Supp. 430
United States v. Daly, 535 F.2d 434 (8th
United States v. DiGirlomo, 550 F.2d 404
t‘----
r. 7+ ee ee ee ee ee ee ee ee ee ee ee
paited States v. DiRe, 332 U.S. 581 (1948) --
United States v. Donovan, 429 U.S. 413
28,29,37,43,52
18,19
13
17,18,24
50
29,35,52
18
18,24
18,24
63
60
37,44
28,29,32,36,44,51
29,32,51,54,63
63,65
32,37,43
60
24,41
60,66
-iv -
n, 465 F.2d 1057
aes states Vv. Falcone, 364 F.Supp. 877
IS73), aff'd, 505 P. 2a 478
(3rd Cir. 1974), cert. denied, 420
U.S. 955 (1978) «nnnnenn nee n mn nnne 32,42
ited States v. Fino, 478 F.2d 35 (2d Cir.
» Cert. deniod, 417 U.S. 918 (1974)- 36
ted States v, rey ane 340 F.Supp. 1033
, a oy nom. United States
Vv. Giordano, To Fl td sad (ith Cr.
» rev'd on other grounds, 416
U.S. 50 ee eneenoneseseeeeeesese=s 26,29,3)1,32,43,51,55
61-63
ited States v. Fury, 554 F.2d 522 (2nd Cir.
’ ve on for cert. filed,
U.Ss. . © ee ay ; ‘
16=6828) monn ccnnnmnnnwnnwcceccncncnnnns 19,22,23
63
12,13,59-61
543 F.2d 1002 (2nd
ed, 429 U.S. 980 (1976)- 19,21,23,32,35
James, 494 F.2d 1007 (D.C.Cir.),
U.Ss. 1020 (1974) ewww nnnns 6,29,38,42-47,50
$2
United States v. Kahn, 415 U.S. 143 (1974) ----- 12,33
United States v. King, 335 F.Supp. 523 (8.D.
al. » rev'd on other grounds, 478
F.2d 494 (9th CI IST), Cert, denied,
417 U.S. 920 (1974) een nnn nnn nme m nn mmen nnn 30,31,35,41,43,49
54,55,63
United States v. mn 478 F.2d 494 (9th Cir.
, Cert. denied, 417 U.S. 920 (1974). 17,24
United States v. LaGorga, 336 F.Supp. 190
Langa, 349 F.Supp. 929 (M.D.
United States v. Leta, 332 F.Supp. 1357 (M.D.
Fredi, 488 F.2d 588 (2d
E. Genied, 417 U.S. 936
(1974) eememeuecceeceeceeeeeseceecceccess 35
26,31,63,65
d Sta Vv. Po » 455 F.2d 117 (2d Cir.),
r ° ; U.S. 948 (1972) «<<< «<==
» $31 F.2d 1132 (2d
, 430 U.S. 905
19-21,23
36,43,48,5)
~ vi -
- Vv -
| ' Page
j Pa e : .
| cage 18 U.S.C. § 2518(1) (b) (iv) --<<-<00--00- 12,60
lUnited States v. Ramsey, 503 F.2d $24 (7th
| Cie. 18787 cert, denied, 420 U.S, ; 18 U.8.C. § 2518 (1) (0) -nnnnnnnnnnnnnnne 19
, 932 (1975) nnn wmennnmmmnmnnenenennennns 19,21,23
| HSS 6 16 U.8.C. § 2518 (5) ennnnnnnnnccnnnnnnns 3,4,8,9,10,25,26,28-
‘United States v. Rizzo, 491 F.2d 215 (2nd 30,32,33,35,37,42,43
j Ee ; cer ‘ enied, 416 U.S. 990 50,52,56,59,61
(19.74) esece cece ce ww www en wewewecceecesens 32
18 U.S.C. § 2518 (6) mnnnnnnncnnccncccunn 51
United States v. Serrano, 317 F.2d 386 (2nd
mms ote cc ie eel 23 16 U.S.C. § 2518(8) (4) -nnnnnnnnccccccns 60,66
United States v. Sisca, 361 F.Supp. 735 L8 U.S.C. § 2518(10) (a) -----== swowwomm= 4,10,11,13,17,18-19,
| . ,*f . , ’ aff'd, 503 F.2d 1337 53
(24 Cir.), cert. denied, 419 U.S. 1008
| (1994) ecccncccccceeeeesecncescececeesce 32,42,45,54,63 18 U.S.C. § 2520 -nnnnnnnnnnnnnnnnnnans 3?
United States v. Sklaroff, 323 F.Supp. 296 20 U.8.C. § 1284 (1 poeeecenennneeecnnnn 3
| (S.0.FYa T97l), aff'd, 506 F.2d 837
| (Sth Cir.), cert. denied, 423 U.S. 874 cts By Popular Name
(1975) ennnnnnccceceneeeseseeenenes “<<== 34
pe a oe The Omnibus Crime Control
nited States v. Thweatt, 433 F.2d 1226 and Sate Streets Act of 1968, 18 U.S.C,
. Ti bbeacses seueseaneouceds 54 $§ 2510-2520 (1970) «nanan --- eneneemm= §8,10,12-19,23,28,29,
32,37,46,56,58-61,66
United States v. Tortorello, 480 F.2d 764
~~ (ad Cir. J, Gert, denied, 414 U.S. 866 State Statutory Provisions
973 eeeeoe Seccecce @2eeee e2eeeee0 @2eoeoeoeoeoee , , = , ;
(1 ) 23,30,32-36,38 ead: New York Criminal Procedure Law
§ 700.30 subd, ee 34
United States v. Turk, 526 F.2d 654 (Sth RULES
Cir.), cert. denied, 429 U.S. 823 eae
(1976) ene ewww wmwmww ewww n ween wena nenans 17,25
Revised Rules of the Supreme Court of
United States v. Turner, 528 F.2d 143 (9th the United States, U.S. Sup. Ct,
Cir.), cert. denied, 423 U.S. 996 ae
(199§) esccccscccccceccececces ee 29,32,37,51,63,65 yes oa th RUC alee ae cnacee maralee ‘
United States v. Vento, 533 F.2d 638 (3rd Federal Rules of Criminal Procedure
c. @) eacesneqcnsseaconseccescenes 41 RUL@ 41 (@) ee meen nnn nnn nnn nnnnnnnnns 15
Walder v. United States, 347 U.S. 62 (1954)- $7 MISCELLANEOUS
Warden, Maryland Penitentiary v. Hayden,
yo U4. 297 (1967) ------- See 21,54 Brief for the United States in Opposition
to the Petition for Writ of
Weeks v. United States, 232 U.S. 383 (1914)- 58 Certiorari, fury v. United spatre
No. 76-6828 upreme Court o °
Wong Sun v. United States, 371 U.S. 471 (1963)- 57 United States, Oct. Term, 1977) «««««««<«« 23
Ztweibon v. Mitchell, 516 F.2d 594 (D.C.Cir. Rep. sprinned’ ip 1968 Udcete eon
~ TOTS), cert. denied, 425 U.S. 944 (1976)-- 37 reprin .§.Code Cong.
ae onied : é ix N@WS, 215 3eeeneeewn cee eeennnnnnne 14,16,29,53,57,61
CONSTITUTIONAL AND STATUTORY PROVISIONS
Note, Minimization of Wire Interception:
United States Constitution Presearch Guidelines and Postsearch
a Remedies, 26 Stan. L.Rev. 1411 (1974) -- 46
Fourth Amendment +<<<<<<<<<8<<nnnnnnnnnnn 3,19,20,25-27,33
United States Code .
18 U.S.C. § BSLO(LL) annnn ee mennnnnnnnnnn 3,10,11,13,17,19
18 U.S.C. § 281 Sennnnn nnn nnnnnnnnnnnnnn=3,8,13,14,53,56-59 ;
18 U.S.C. § 2516 (1) eennn wenn nn nnnnnnnnnnn 12,59
18 U.S.C. § 2517(S8) enmnnnnnnnnnnnnnnnnnnn 55
18 U.S.C. § 2510----nnnnnnnnnnnnnnnnnnnn= 5,18
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
NO. 76+6767
FRANK R. SCOTT and BERNIS L. THURMON,
Petitioners
V.
UNITED STATES OF AMERICA,
Respondent
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA
BRIEF FOR CHLOE V. DAVIAGE AS AMICUS CURIAF
INTEREST OF CHLOE V. DAVIAGE
On June 24, 1970, a District of Columbia Grand Jury handed
down indictments charging amicus Chloe Daviage and petitioners
|| Frank Scott and Bernis Thurmon with violation of federal narcotics
laws. For the next seven years, Daviage, as a direct party to
the proceedings, vigorously asserted her rights in extensive
pre-trial hearings, the trial itself, three decisions of the
court of appeals, and two petitions for writ of certiorari.
Although this Court granted the joint petition for writ of
Certiorari filed by Scott and Thurmon (No. 76-6767), it has not
acted on Daviage's petition (NO. 76-6637) .¢
This Court's review of Scott's and Thurmon's claims involves
consideration of the identical court of appeals opinion and
judgment to which Daviage was a party below and from which she
filed a separate and timely petition for writ of certiorari. Hence,
any action the Court takes in the instant case will apply to
Daviage, not simply as precedent but because she is a party to the
|judgment of the court of appeals which this Court will reverse,
affirm or vacate.
ds
The legal issues in Scott's and Daviage's cases are identical
ontending that he lacks standing to raising minimization claims.
pen Thurmon case is different only insofar as the Government is not
,
In a letter to the Clerk of this Court, dated October 14,
1977, counsel for Daviage pointed out that his client was placed
in the position of having her case determined solely by the
factions of counsel for her co-petitioners. The letter also noted
that because this Court had not ruled on Daviage's petition to
proceed in forma pauperis, she would be unable to file an amicus
curiae brief due to the cost of printing. On October 17, the
Clerk telephoned counsel for Daviage and stated that she would
not be required to comply with the requirement of Rule 42.5, of
the Revised Rules of this Court that an amicus curiae brief be
printed,
In @ letter dated October 25, 1977, counsel for petitioners
Scott and Thurmon consented to Daviage's participation as amicus
Curiae. In a letter dated November 4, 1977, the Solicitor
General gave his consent. Those letters have been filed with the
Clerk of this Court.
OPINIONS BELOW
The Memorandum Opinion of the United States Court of
Appeals for the District of Columbia Circuit, filed on March 29,
1977, i unreported. The text of the opinion is set forth in the
Joint Appendix. No opinion was rendered by the United
States District Court for the District of Columbia upon the
conviction of the petitioners and the amicus.
Other opinions in this case prior to the conviction of the
petitioners and the amicus are as follows: The first opinion
f the United States District Court for the District of Columbia,
granting the joint motion to suppress evidence, is reported at
311 F.Supp. 233 (D.D.C, 1971). The opinion of the United States
ourt of Appeals for the District of Columbia Circuit upon the
vernment's first interlocutory appeal is reported at 504 F.2d 194
(D.C.Cir, 1974). The second opinion of the district court, again
ranting the renewed suppression motion, is unreported. The text
f the opinion is set forth in the Joint Appendix and in the
dendum to this Brief. The opinion of the court of appeals upon
e Government's second interlocutory appeal is reported at 516 7606
51 (D.C.Cir. 1975). The order of the court of appeals denying a
A — a
suggestion for rehearing en bane of the Government's second inter-
locutory appeal and the statement of Circuit Judge Robinson are
reported at 522 F.2d 1333 (D.C.Cir. 1975). The order of this
Court denying the petition for writ of certiorari to review the
court of appeals' opinion on the second interlocutory appeal, and
the dissenting opinion of Mr. Justice Brennan are reported at
425 U.S. 917 (1976),
JURISDICTION
The Memorandum and Judgment of the Court of Appeals for the
District of Columbia Circuit were filed on March 29, 1977. This
Court's jurisdiction is invoked under 28 U.S.C. § 1254(1) (1970).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
United States Constitution - Amendment IV
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasoneble searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched,
and the persons or things to be seized.
United States Code - 18 U.S.C, § 2510(11) (1970)
As used in this chapter -
(ll) “aggrieved person” means a person who was a
party to any intercepted wire or oral communica-
tion or 4@ person against whom the interception
was directed,
United States Code - 18 U.S.C, § 2515 (1970)
Whenever any wire or oral communication has
been intercepted, no part of the contents of
such communication and no evidence derived there-
from may be received in evidence in any trial,
hearing, or other proceeding in or before any court,
grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of
the United States, a State, or a political subdivision
thereof if the disclosure of that information would be
in violation of this chapter.
inited States Code - 18 U.S.C, § 2518(5) (1970)
(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 authoriza-
tion, nor in any event longer than thirt days. Exten-
sions of an order may be granted, but ealy upon appli-
cation for an extension made in accordance with sub-
section (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 pur-
poses for which it was granted and in no event for longer
than thirty days. Every order and extension thereof shall
contain 4 provision that the authorization to intercept
wo See
-
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.
United States Code - 18 U.S.C. § 2518(10) (a) (1970)
(10) (a) Any aggrieved person in any trial,
hearing, or proceeding in or before any court,
department, officer, agency, regulatory body, or
other authority of the United States, a State, or
a political subdivision thereof, may move to
suppress the contents of any intercepted wire or
oral communication, or evidence derived therefrom,
on the grounds that --
(i) the communication was unlawfully
intercepted;
(ii) the order of authorization or
approval under which it was intercepted
is insufficient on its face; or
(iii) the interception was not made in
conformity with the order of authorization
Or approval.
Such motion shall be made before the trial, hearing,
or proceeding unless there was no opportunity to
make such motion or the person was not aware of
the grounds of the motion. If th<z motion is granted,
the contents of the intercepted wire or oral commu-
nication, or evidence derived therefrom, shall be
treated as having been obtained in violation of
this chapter. The judge, upon the filing of sucii
motion by the aggrieved person, may in his discre-
tion make available to the aggrieved person or
his counsel for inspection such portions of the
intercepted communication or evidence derived there-
from as the judge determines to be in the interests
of justice.
QUESTIONS PRESENTED
1. Do parties to telephone conversations intercepted pursuant
to a wiretap order have standing under 18 U.S.C. § 2518(10) (a) to
move to suppress the communications seized in deliberate violation [
of the minimization directives contained in that wiretap order?
| 2. Did the court of appeals err in concluding that federal
| narcotics agents, in executing a wiretap, complied with the
| Provision of the intercept order which, pursuant to 18 U.S.C.
§ 2518(5), required the agents to minimize the interception of
non-pertinent conversations, even though the agents conducted
round-the-clock surveillance, monitored each and every communica-
oe
—- =
tion, and admittedly made no good faith effort to comply?
3. Is suppression of the entire intercept and any evidence
derived therefrom required because the executing agents totally
suant to 18 U.S.C. § 25i8(5), directed them to minimize the inter-
mony and flagrantly violated the wiretap order which, pur-
i se e 6 «
: Opinion, finding that all the defendants had standing to raise
- versations?
preption Gf asa=pertinent cen : a minimization claim. The court further held, however, that the
| trial court had applied an impro standard i
STATEMENT ; pp mproper ncarad in assessing the
| : merits of the minimization issue, and that the issue must be
| Petitioners Frank Scott and Bernis Thurmon, and amicus
determined by the standard indicated in its decision in Uni
| Curiae Chloe Daviage were indicted in the United States District y ‘ = in Seated
States v. James, 494 F.2d 1007 (D.C.Cir. 1974). The court of
|| Court for the District of Columbia on June 24, 1970, on four : .
a als found the record insufficient to ap ly the James standard,
| counts of alleged violations of federal narcotics laws. The “ PP*y — .
; and remanded for further hearing, particularly wih regard to the
| charges resulted from evidence obtained through the use of wire-
| . analysis by the United States attorney of the intercepted calls
| tap intercepts conducted by the Government, pursuant to 18 U.S.C.
submitted by the Government in Support of its motion for recon-
§ 2518, from January 24 to February 24, 1970.
, ; sideration in the district court in 1971. United States v. Scott,
On April 29, 1971, the district court Granted defense motions
\* 504 F.2d 194 (D.C.Cir. 1974) (hereinafter referred to as "Scott
| to suppress all wiretap evidence because of the Government's
I").
failure to comply with the requirement, contained in both § 2518 =
ht ep Hearings on the minimization issue were held in the district
jjand the Order authorizing the wiretap, that its agents minimize
| court between October 15 and November 8, 1974. The court found,
| the interception of non-pertinent conversations. The court relied
* inter alia, that the monitoring agents made no attempt to comply
upon testimony to the effect that sixty percent of the conversa-
! . . .
with the minimization provision of the Wiretap order, and
tions did not involve narcotics, and found no evidence that the P P what the
; ae : pnly time the agents even considered minimization occurred when
executing agents made any attempt to comply with the minimization
: : they mistakenly tapped into the wrong line. Based on the admitted
requirement. The court held that to allow continued monitoring :
; ; failure by the monitoring agents even to attempt compliance, the
when the intercepted communications are Clearly non-narcotic re-
ee ; . court again suppressed the wiretap evidence and entered an order
lated would render the minimization requirements of the statute
6 ok to that effect on November 17, 1974. See Joint Appendix,
mnugatory and violate the principles of Berger v. New York, 388 U.S.
and the Addendum to this Brief.
41 (1967) and Katz v. United States, 389 U.S. 347 (1967). The
; ; The Government took a second interlocutory appeal on
court also found that the application for an order authorizing
December 3, 1974. The case was argued before the court of appeals
the wiretap and the supporting affidavit were sufficient to satisfy
3 on April 23, 1975. On July 25, 1975, that court rendered its
the requirements of the statute. United States v. Scott, 33i F. ;
H Opinion, ruling that even if sixty percent of the calls were non-
Supp. 233 (D.D.C. i971).
narcotic related and that the agents made no attempt to minimize
On May 26, 1971, the Government moved for reconsideration
the interception of innocent conversations, it could find no
by the district court of its order. It presented an analysis
instance where the agents' conduct in intercepting conversations
tee by the United States ettorney, fourteen months after the
; ; was unreasonable. Pursuant to United States v. James, supra, it
actual surveillance, in which the intercepted calls were categorized ~
reversed the lower court's suppression order. The court went on to
and a conclusion presented that only two percent of the calls
note that had the district court been correct in its ruling that the
were unreasonably intercepted. The court denied the motion on
| minimization requirement had been breached, total suppression of
June 29, 1971.
the evidence would not appear to be the proper remedy, and
The Government filed an interlocutory appeal to the United
| 4 ;Suggested that only conversations which were non-narcotic related
tates Court of Appeals for the District of Columbia Circuit on | ,
be suppressed. United States v. Scott, 516 F.2d 751 (D.c.
une 23, 1971. On June 27, 1974, the court of appeals issued its
Cir. 1975) (hereinafter referred to as "Scott II").
On August 8, 1975, Scott, Thurmon, and Daviage petitioned
the court of appeals for a rehearing en banc. On October 3, 1975,/|
the court of appeals denied the request, four judges dissentins.
United States v. Scott, 522 F.2d 1333 (D.C. Cir. 1975). |
On November 3, 1975 Scott, Thurmon,and Daviage petitioned the |
Supreme Court for a writ of certiorari. On April $5, the petition
was denied with three justices dissenting. Scott v. United States,
425 U.S. 917 (1976).
The case was then remanded for trial, pursuant to Scott II.
'
i
i
|
On July 6, 1976, motions on behalf of all defendants for dismissal |
of the indictments on speedy trial grounds were denied. On July
25, 1976, Scott, Thurmon, and Daviage were tried on a stipulation of
facts and all were found guilty of violating one or more provi-
sions of the federal narcotics laws. Scott and Thurmon were each
sentenced to ten years' imprisonment. The trial court, noting |
that Daviage's participation in the offenses was only peripheral, * |
sentenced her to three years'imprisonment, suspending all but six
months. |
The defendants filed notices of appeal to the court of appeals,
in which they claimed that they were denied the constitutional right
to a speedy trial. They also preserved for review in this Court
the minimization issue.
The case was argued on March 21, 1977. On March 29, 1977 |
the court of appeals filed a memorandum opinion denying all of the |
contentions. |
On April 22, 1977, Daviage petitioned this Court for a writ
of certiorari. On May 19, Scott and Thurmon filed a joint petition
for writ of certiorari. Both petitions raised the minimization
Scott's and Thurmon'
and speedy trial issues. On October 11, 1977,
petition was granted, limited to the statutory minimization issue.
The Court further directed the parties to brief and argue the
3238 (1977).
question of standing. 46 U.S.L.W. Daviage’s petition
is still pending.
=
“-
Daviage was found guilty only of one count of using a tele-
phone to facilitate the purchase of narcotics.
:
A ot ~ | hei we et owe
a ee ee + eee
oes -se ase ©
| difference in determining standing.
- a ae
SUMMARY OF ARGUMENT
I. Standing of the parties in this case to raise the
minimization claim is conferred by the plain meaning of the
statute in that a party to an intercepted communication is an
“aggrieved person” and, as such, is entitled to invoke the suppres-
sion sanction of 18 U.S.C. § 2515. The fact that Scott and
Daviacge, were not subscribers to the tapped telephone is irrelevant
Although the intercepted calls in which Scott and Daviage
participated were exclusively inculpatory, this fact also makes no
To the extent that the nature
of the intercepted calls is relevant at all, that factor Only serv
as one kind of evidence in demonstrating a failure to minimize.
Moreover, such a construction requires no expansion of the current
law of standing. Recent case law reflects this Court's concern
with protecting privacy rights and insuring that those who fall
victim to official intrusion can seek redress.
II. Although this Court has not yet given workable criteria
to the minimization requirement, a discernible standard has
developed in the federal courts. This standard requires that, to
Satisfy the directive of 18 U.S.C. § 2518(5), (1) the agents
must make good faith attempts to minimize the intercepticn of
nonpertinent conversations, and (2) the attempts to minimize must 7
reasonable. This two-prong standard, widely adopted by the courts,
implements the approach of the drafters of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 in balancing
the competing values of law enforcement and privacy. It further
seeks to mitigate the problems of hindsight evaluations of reason-
ableness. The record in this case manifests the flagrant viola~
tion and purposeful disregard of the minimization requirement by
the agents who conducted the surveillance. The admitted failure
even to attempt to minimize precludes a finding of compliance
with § 2518(5), and requires reversal of the case. However,
should this Court find the good faith test inapplicable and seek
to determine whether the actual minimization accomplished was
reasonable, it is equally clear that, under the circumstances,
100% interception was unreasonable. Given the relatively small
scope of the criminal enterprise, the residential nature of the
tapped telephone, the development of patterns of unrelated
communications, and the inadequate judicial supervision, a sub-
stantial degree of minimization was required. Absent even the
attempt at minimization, § 2518(5) was clearly violated.
III. Should this Court determine that the Government violated
the minimization requirement, the appropriate remedy is suppression
of the entire intercept. The statutory suppression remedy
provided for in § 2515 directs a court to suppress intercepted
communications and any evidence derived therefrom where the
interception was not made in conformity with the order of authori-
zation or approval. Confining suppression to those calls which
fall outside the scope of the warrant, as the Government seems to
uggest, is essentially no remedy since, unlike a tranditional
earch, the improper items (i.e. conversations) seized will be
mnocent or at least irrelevant to the criminal matter which is the
ubject of the wiretap. To suppress only non-pertinent communica-
ions is to discredit the centrally important function of § 2518(5),
hich is to insure that electronic surveillance is conducted pur-
uant to the directives of Berger and Katz.
Whether the remedy of exclusion cf evidence taken in violation
£ minimization requirements is confined to cases where no good
aith efforts were taken to implement any plan for minimization,
c whether the remedy may be applied more broadly to cases where
i
the violation is the failure to take adequate steps to minimize,
exclusion is required in this case because the monitoring agents
‘ain and deliberately disregarded the minimization requirement.
—-
rey |
- 10 -
I. DAVIAGE AND SCOTT,AS PARTIES TO INTERCEPTED TELEPHONE CALLS,
HAVE STANDING TO MOVE TO SUPPRESS COMMUNICATIONS SEIZED IN
VIOLATION OF THE WIRETAP ORDER.
Daviage and Scott have standing to request suppression of
the wiretap evidence in the instant case. The plain language of
Title III of the Omnibus Crime Control and Safe Street Act of 1968,
18 U.S.C. §§ 2510-2520 (1970), (hereinafter referred to as
“Title III"), and the relevant decisions of this Court and other
federal courts support this position. Their position is grounded
on the fact that 1) they were parties to intercepted conversations,
and 2) the agents executing the wiretap did not adhere to the
minimization requirement contained in the wiretap order.°
According to the terms of Title III itself, these two factors
trigger the standing provisions outlined in the statute.
Section 2518(10) (a) of Title III sets forth the statutory
requirements for standing to request suppression. It states
in pertinent part:
Any aggrieved person in any trial...may
move to suppress the contents of any
intercepted wire or oral communication,
Or evidence derived therefrom, on the
grounds that - -
(iii) the interception was not made in
conformity with the order of
authorization or approval. 4
An “aggrieved person” is defined in § 2510(11) as
a person who was a party to any intercepted
wire or oral communication or a person against
whom the interception was directed.
3.
Section 2518(5) states, in pertinent part:
Every order and extension thereof shall contain
a provision that the authorization to intercept
shall be...conducted in such a way as to minimize
the interception of communications not otherwise
subject to interception under this chapter....
4.
The entire text of § 2518(10) (a) is set forth, supra, at p.4}
- ll «-
« 12 e
| in the instant case, Daviage and Scott were parties to This Court has previously determined that Title III should
’ | intercepted telephone communications; indeed, the wiretaps were . be strictly construed to implement the clear Language of the
| the sole evidence against them. Upon hearing the initial motions statute itself and the underlying congressional intent to limit
'
to suppress, the trial court rejected the Government's contention electronic surveillance. In United States v. Giordano, 416 U.S.
j “MOS Chey lacked standing to raise the minimisation wry see $05 (1974)) the Court interpreted § 2516(1) of Title IIZ. Mr,
United States v. Scott, 331 F.Supp. 233 (D.D.Cc, 1971), At Justice White, speaking for a unanimous Court, stressed that
6 the first interlocutory appeal, the Government pressed its standing Congress legislated in considerable detail
in providing for applications and orders
argument. See Scott I, 504 F.2d 194 (D.C.Cir. 1974), The authorizing wiretapping and evinced the
Clear'intent to make doubly sure that the
court of appeals, resting its decision entirely upon the plain statutory authority be used with restraint
and only where the circumstances warrant
language of §§ 2510(11) and 2518(10) (a), correctly rejected the the surreptitious interception of wire and
Government's claim, ruling that all of the defendants satisfied oral communications. 416 U.S. at 515.
the requirements as stated in Title III: Giordano involved the Government's attempt to broaden § 2516(1) to
There appears to be no question that each permit the Attorney General to delegate his power to authorize
+ Ba Re. ne ol gh. Ay. i of interceptions to his administrative assistant instead of to an
Ne gs nr ot Brea < sttratttt authorized Assistant Attorney General. The Court refused to
mindudee saaeaanenene oa pers 1 ll accept an interpretation of § 2516(1) which would not only ease
a catia sete te eee the ability of the Government to seek warrants (thereby violating
Tiss aauelanenee hee ce eameniar aaa, o the Congressional intent behind Title III) but also was Clearly
caikanena porn La Bane Banya ike aueead not warranted by the plain words of the statute.
couhteniia Gith ik Geaat ar Ga In United States v. Kahn, 415 U.S. 143 (1974), the Court con-
= 133 thesetees aa 304 F.2d strued the language of § 2518(1) (b) (iv) which requires the wiretap
It is not disputed that Scott, Thurmon, and Daviage were applicant to state “the identity of the person, if known,
parties to intercepted telephone communications. Yet despite committing the offense and whose communications are to be inter-
the unequivocal language of § 2518(10) (a), conferring upon such cepted." The Kahns unsuccessfully argued that this language
persons the right to move for suppression of the interceptions should be interpreted to mean the applicant must name all possible
that did not conform to the wiretap order, the Government con- people whose communications may be intercepted. 415 U.S. at 152.
tinues to urge that Scott and Daviage lack standing. ° Mr. Justice Stewart, speaking for the Court, stressed that in
resolving the sometimes contrary considerations of law enforcement
Ly with the need for individual privacy, it was important to begin
Explicit reference to the trial court's determination that
all the defendants had standing to raise the minimization issue is with “the precise wording chosen by Congress in enacting Title III.?
found in the first court of appeals decision. Scott I, 504 F.2d 194
(D.C.Cir. 1974). In that opinion, the court stated in reference to 415 U.S. at 151. The Court held, therefore, that since § 2528(2) (b]
the standing issue:
Although the opinion does not so indicate, (iv) stated two requirements-- identification of the person
the transcript of the hearings reveals that Tin. 6 cont'd.)
the Government unsuccessfully pressed this ’ States, in Nos. 76-6637 and 76-6767 (Supreme Court of the United
argument upon the District Court. Id. at 197 n.6, States, Oct. Term, 1977), (hereinafter “Government's Brief in Opposi+
6. one Government bases its argument on the notion that, since tion") at 6-7. Of course, such a contention rests squarely on the
’ . ” a c °c Ss
the intercepted calls in which Daviage and Scott participated were Panera po Fo Dr - Header pstay, Saga so. 1-860
‘ related to the purpose of the wiretap, — were not injured. ree P ‘ . ‘
Scott I, 504 F.2d at 197; Brief for the United States in Capes on
jto the Petitions For Writ of Certiorari, Scott, et al. v. United
|
portion of the Senate committee report which amplifies the defini-
‘the defendants moving to suppress wiretap evidence had been parties
° 13 «
committing the offense and of the person whose conversations were td
be intercepted; hence, the government agents were not required to
name those whom they did not yet know to be committing the offense.
The message of Giordano and Kahn is clear: the detailed
provisions of Title III should be precisely implemented. These
cases further suggest that, should interpretation be necessary,
any ambiguities should be construed in favor of limiting the
government's surveillance authority and showing a high regard for
individual privacy. See United States v. Giordano, 416 U.S. at 515.
A finding that Daviage and Scott are aggrieved persons and
have standing is also consistent with the general purpose of Title
IIt and fourth amendment Standing principles. The legislative
history of § 2510(11), itself, is not particularly revealing. The
tion of “aggrieved person", says simply:
This definition defines the class of those
who are entitled to invoke the suppression
sanction of section 2515 diecussed below,
through the motion to suppress provided for
by section 2518(10) (a), also discussed below.
It is intended to reflect existing law.
» Rep. No, ’ ong. ess. 91, re-
rinted in 1968 U.S. Code Con News,
a -50. (emphasis supplied).
The legislative history of §§ 2515 and 2518(10) (a), while shedding
Light on those particular sections, does not add meaning to the
Gefinition of “aggrieved person." See S. Rep. No. 1097, supra, 96,106
7
eprinted in 1968 U.S. Code Cong. & Ad, News at 2184-85, 2195.
However, an examination of the total legislative history of
Title III does reveal that permitting one in Daviage's or Scott's
position to raise standing is consonant with the general thrust of
Title III to show a high regard for individua) privacy. The
legislative history establishes that the purpose of Title III is
twofold: (1) to protect the privacy of wire and oral communications}
and (2) to delineate the precise circumstances under which certain
limited interception may be warranted. See S. Rep. No. 1097, 90th
a
There is nothing in the legislative hitcory of these section
which suggests that persons in the position of Daviage and Scott do
not have standing. See United States v. font 363 F.Supp. ll, 17
(S.0.Ga. 1973), in while e court eld that as long as
to some of the interceptions, they had standing.
|
| -u4-
:
Cong., 2nd Sess. 66, reprinted in 1968 U.S.Code Cong. & Ad. News,
at 2153. The Senate Report also states:
The tremendous scientific and techno-
logical developments that have taken
place in the last century have made
possible today the widespread use and
abuse of electronic surveillance
techniques. As a result of these deve lon-
ments, privacy of communication is
seriously jeopardized by these
techniques of surveillance. Id. at 67
reprinted in 1968 U.S.Code Cong. & Ad.
Newb at 71574
Title III is explicitly constructed to protect the privacy
interests of iadividuals from electronic invasion. The policy of
protecting privacy is further stated in the commentary accompanyin
8
§ 2515. In speaking of this section, the Senate Report states:
The provision thus forms an integral
part of the system of limitations designed
to protect privacy. Along with the criminal
and civil remedies, it should serve to
guarantee that the standards of the new
chapter will me gee pd curtail the unlawful
interception of wire and oral communication.
Id. at 96, reprinted in 1968 U.S. Code Cong.
fAd. News aes
Thus, while Title III seeks to employ limited electronic
‘eateenenens against certain kinds of organized crime, at the same
time a premium is placed on respect for the privacy interests of
the citizenry. The protection of privacy was stressed by the
Court in Gelbard v, United States, 408 U.S. 41 (1972). The Court
stated that the underlying policy of the wire tapping provisions of
Title III is “strictly to limit the employment of those techniques
of acquiring information," Id. at 47. In order to implement that
policy,
Title III authorizes the interception of
private wire and oral communications, but
only when law enforcement officials are
investigating specified serious crimes and
receive prior judicial approval, an approval
that may not be given except upon compliance
with stringent conditions, Id. at 46,
The policy of limiting electronic surveillance, then, is clear
both from the legislative history and from the Court's own inter-
am “eer
Section 2515, discussed in detail, infra, at pp.56-59
e evidentiary sanction by prohibiting the use as evidence of wire
r oral communications intercepted in vigtation of *itle IIL. The fu
ext of § 2515 is set forth supra, at p.3.
pretation of that history. The question of standing must be meds.
ll
- 1§ -
with an awareness that the congressional policy underlying Title
Ill recognizes the obtrusiveness of electronic surveillance. The
standing provisions, therefore, were drafted with the understand-
ing that the potential for invasion of privacy was great. So,
while not intending to expand existing law, Congress did intend to
insure that those persons whose privacy was invaded would be in a
position to assert the proper statutory remedy.
An examination of existing fourth amendment standing oe
which Title III's standing requirements were meant to reflect,
reveals further support for Daviage's and Scott's position.
in Jones v. United States, 362 U.S. 257, (1960), this Court
discussed standing under Rule 41(e), Fed. R. Crim. P. Jones
discussed the dilemma facing a defendant charged with a crime of
which possession is a key element. In such a situation, a defen-
dant admitting his possession for the purpose of establishing
standing to move to suppress the item would also necessarily be
admitting to one of the key elements of the substantive crime. The
Court determined that requiring a defendant to make this Hobson's
choice violated the purpose behind Rule 4l(e). Mr. Justice
Frankfurter, speaking for the Court, said that the search and
Seizure restrictions were “designed for protection against
official invasion of privacy,” and that an “aggrieved person" is
one who “belongs to the class for whose sake the Constitutional
protection is given.” 362 U.S. at 261, quoting New York ex rel.
Hatch v. Reardon, 204 U.S. 152, 160 (1907). Indeed, as the Court
pointed out, the very purpose behind judicial refusal to view
evidence gathered in violation of the fourth amendment is to make
“effective the protection of privacy." Id. at 261,
The Jones case developed the rule that “anyone legitimately on
premises where a search occurs may challenge its legality....'
362 U.S. at 267. This rule sweeps aside subtle distinctions of the
common law of property as the basis for determining standing, and
5,
See the legislative history quoted, Supra at pp. 13-14
0.
: In Jones, the Court held that the petitioner had standing
under 4l(e) to raise the levality of a search of an apartment in
which he was only occasionally aquest,
| tery ie ae
"Lie are heme ee ee
indicates che Court's concern with insuring that those whose
constitutionally protected privacy rights fall victim to official
intrusion can seek redress. Mr. Justice Frankfurter further
stated, with specific reference to “aggrieved person" status, that
we are dealing with carrying out an
important social policy and not a narrow,
finicky procedural requirement. Id. at 264,
In Alderman v. United States, 394 U.S. 165 (1969), this
Court further elaborated on standing to raise a fourth amendment
violation:
In these cases, therefore, any petitioner
would be entitled to the suppression of
government evidence originating in electronic
surveillance violative of his Fourth Amend-
ment right to be free of unreasonable searches
and seizures. Such violation would occur if
United States unlawfu
gations occurring on S premises, whether
Or not he was present or participated in
those conversations. Id. at 176 (emphasis
supplied).
The Alderman Court explicitly kept its holding within the bounds
of fourth amendment standing doctrine. See Id. at 175-76, +4 However)
by its very terms --"if the conversation of a petitioner were over-
heard"+= the Alderman Court makes Crystal clear that Daviage and
Scott would have had standing under pre-Title III law. +?
II.
Indeed, the decision refers to the then proposed Title III
legislation as support for the notion that either Congress or the
state legislatures could expand constitutional standing doctrine,
- that the proposed Title III did not do so. Id. at 175 n.9.
12.
In Berger v. New York, 388 U.S. 41 (1967), this Court held
that the petitionse had standing to challenge the New York State
bois ora surveillance statute even though his conversations were
nly overheard during the bugging of someone else's office. The
erger Court stated:
Since petitioner clearly has standing to
pr renee the statute, being indisputabl
affected by it, we need not consider... the
standing of petitioner to attack the search
and seizure made thereunder. Id. at 55.
erger was one of the primary opinions used by the drafters in con-
tructing Title III. The narrow proscriptions of both apeder and
» 389 U.S. 347 (1967), were explicitly built into Title IIT:
In the course of the opinion [perger Vv. lew fork ly
the Court delineated the constitutional criteria
that electronic surveillance legislation should
contain. Title III was drafted to meet these
standards and to conform with Kar? Vv. Te
States, 389 U.S. 347 (1967). Ss. .
Pp ‘ ’
ERas' ews ee -7TeT in 1968 U.S.Code Cong.
The Alderman case, unlike the instant one, involved the
telephone of Bynum's paramour from whose residence Bynum placed
surreptitious placement of a “bug". However, the pre-Title III
>
his narcotics-related calls. The court said that because calls
Standing rule was no different when the device used to obtain
of Bynum's were intercepted,
information was a wiretap. This fact was made clear in Katz v.
Bynum was clearly an “aggrieved person" as
United States, 389 U.S. 347 (1967), where the Court, after noting defined in 18 U.S.C. § 2510(11) and there-
fore is given leave to raise the legitimacy
that the fourth amendment covered electronic interceptions, went of the Sie etattene under 18 U.S.C. § 2518(10).
Id. at 835-36*{footnote omitted).
| On to state that one who uses a telephone
See also United States v. Carubia, 377 F. Supp. 1099, 1107 (E.D.
is surely entitled to assume that the words
he utters into the mouthpiece will not be N.Y. 1974); United States Vv. Ceraso, 355 F.Supp. 126, 127 (M.D. Pa.
broadcast to the world. To read the
Constitution more narrowly is to ignore 1973).
the vital role that the public telephone has
come to play in private communication. Although interpreting a different subsection of § 2518, United
Id. at 352.
14
States v. Bellosi, 501 F.2d 833 (D.C.Cir. 1974) lends further
The thiust of Jones, Alderman, and Katz is that standing
support to Daviage's and Scott's standing argument. In that case,
doctrine is designed to afford persons whose conversations have
the Government had procured a wiretap order without informing the
been overheard a means of challenging the validity of the inter-
authorizing judge that one of the targets of the wiretap had been
ceptions. Those cases indicate that "(p)rivate conversations...» |
a target of a prior wiretap relating to a different offense. The
at the core of the area in which indiviauals may have reasonable
defendants challenged the propriety of the authorization in their
expectations of privacy”. United States v. Turk, 526 F.2d 654 (5th
motion to suppress, and the Government argued that only the
Cir.), cert. denied, 429 U.S. 823 (1976) (footnote omitted).
specific defendant who had been the target of the prior wiretap had
—_"
This policy has been articulated in several lower federal court
Standing to challenge the surveillance evidence. The Government's
decisions relating specifically to minimization. In United States
13.
This decision was the first appeal in Bynum. Its complete
itation is United States v. Bynum, 475 F.2d 833 (2d Cir.), on
emand, 360 F.Supp. 400 SDNY, , aff'd, 485 F.2d 490 (2d Cir. 1973},
acated on other grounds, 417 U.S. 503, on remand, 386 F.Supp. 449
S.D.N.Y. , a * 513 F.2d 533 (2d Cir.), cert. denied, 423
-S. 952 (1975).
A subsequent decision in the Bynum litigation, United States vi
num, 513 F.2d 533 (2d Cir.), cert. denied, 423 u.s. 352 (1975),
s cited in the Government's Brief in Opposition for the proposi-
ion that Congress did not intend to broaden standing principles
n Title III. Id. at 6. This later Bynum decision, however, does
othing to weaken Daviage's and Scott's position. It simply held that
leven of the defendants did not have standing because none of them
as a party to intercepted calls or possessed a proprietary interes
n the premises in which the tapped telephone was located. The cour
ent on to hold, however, that two other defendants, including Bynum,
id have standing because they had been parties to intercepted com-
unications.
14-peliosi deals with the impropriety of the authorization to
eek a wiretap, whereas the instant case concerns the legality of th
xecution of a legally authorized wiretap. This distinction, however,
s not significant in determining the question of standing. Section
518(10) (a) cites three occasions for suppressing wiretap evidence:
1) the communication was unlawfully seized, (2) the order of autho-
ization or approval was facially insufficient, or (3) the inter-
eption was not made in accordance with the order of authorization
r approval. Certainly these reasons go to both authorization and
xecution. There is nothing in the language of § 2518 (or § 25107(T1))
hich suggests that Congress intended different standing rules to chal
enge the authorization of a wiretap as opposed to its actual omeuGe
Vv. King, 478 F.2d 494 (9th Cir. 1973), cert. denied, 417 U.S. 920
(1974), the court addressed the issue of standing to raise
minimization. Concluding that one of the defendants, Maack, was
i "aggrieved person” with standing to raise minimization, the court
aid:
On at least one occasion a message sent
at his direction and a reply thereto were
intercepted by Government agents. His
privacy was thus invaded to the same extent
as if he had taken the phone in hand and
Spoken on the line himself. Id. at 506.
The circumstances of King are certainly more attenuated than those
/n the instant case. While Maack had relayed at least one message
phrough someone else, Daviage and Scott were actual parties to
everal conversations themselves.
In United States v. Bynum, 475 F.2d 832 (2nd Cir. 1973), the
court relied on §§ 2510(11) and 2518(10) (a) to confer standing to
raise minimization. In Bynum, the actual wiretap was placed on the ’
en
@ 19 «
argument was basec on the purpose of suppression, i.e., that
violations of § 2518(i) (e) would be sufficiently deterred if the
evidence were suppressed only as to the specific victim of the
Gouble wiretap. The court responded by relying on the language
of Title III:
Though we would question the Government's
judgment on how much a zealous law enforce-
ment official would be deterred under its
standing formula, we do not need to do so.
It is sufficient to state that the Govern-
ment's position has not been accomodated
by the unambiguous criterion of standing
set forth in Sections 2518(10) (a) and
2510(11).,301 F.2d at 842 (footnote
omitted).
Despite the clear language of §§ 2518(10) (a) and 2510(11),
the legislative history of Title III, and judicial interpretations
of standing to raise fourth amendment claims both before and
after Title III's enactment, the Government continues to argue
that Daviage and Scott lack standing. In its Brief in Opposition,
the Government seems to be making two arguments. It asserts that
because the intercepted calls to which they were parties were
all related to the purpose of the wiretap, they therefore lack
Standing. However, the Government parenthetically injects a
second notion -- that Daviage and Scott lack standing because
they were not the subscribers to the tapped telephone. See Brief
in Opposition at 6.26 For these arguments, the Government cites
Alderman v. United States, supra; United States v. Poeta, 455 F.2d
117 (2d Cir.), cert. denied,406 U.S. 948 (1972); United States v.
Ramsey, 503 F.2d 524 (7th Cir. 1974), cert. denied, 420 U.S. 932
(1975); and United States v. Hinton, 543 F.2d 1002 (24 Car. de
Cert. denied, 429 U.S. 980 (1976); and United States v. Fury, 554
F.2d 522 (2d Cir. 1977), petition for cert. filed, (May 27, 1977)
(No. 76-6828).
i5.
In footnote 22, the Bellosi court relies on the legislativ
history of Title III, Alderman and Jones in Support of its holding
that all of the defendants had standing.
16-7, is noteworthy that Thurmon, whose standing the Govern-
ment does not contest, was likewise not the subscriber to the
telephone. The subscriber was, in fact, Geneva Jenkins, although
Thurmon apparently shared the premises.
|
|
|
a
aw ee eee
———
—_—_—
- 20 -
Taking the second argument first, the Government looks for
Support to the one paragraph statement in United States v. Poeta,
455 F.2d at 122. In dealing with Poeta's allegation that the
agents failed to execute minimization provisionsin the wiretap
order, the Poeta court says, Simply, that although Poeta was a
party to intercepted calls, the wiretap itself was on someone
else's telephone, and, therefore, Poeta's rights were not invaded.
The only authority the Poeta court cites for its ruling is
Alderman v. Un ted States, supra, and to the extent that it
relies on Alderman, it plainly misreads that Opinion. Alderman
states that fourth amendment rights are "personal" and cannot be
“vicariously asserted." 394 U.S. at 174. Alderman, however,
explains what is meant by violation of these “personal” rights by
saying:
Such violation would occur if the United
States unlawfully overheard conversations
of a petitioner himself.... 394 U.S. at 176.
There is nothing in Alderman which limits standing to the actual
subscriber of the telephone. By its very terms, the opinion says
that one's own privacy is invaded if he is a party to intercepted
communications.
Alderman states only the obvious: a telephone conversation
jdoes not "belong" to either participant alone. Spoken words which
jexist as electrical impulses along a wire cannot be said to be the
“property” of one conversant and not the other. It is even more
wee to assert that, should such a proprietary interest exist
in a telephone conversation, that "interest" fluctuates between
Jones and Smith, depending on whether the Government attaches its
listening device to Jones' telephone (while he is talking to Smith)
Dr Smith's telephone (while he is talking to Jones). As Mr. Justice
randeis noted in his famous dissent in Olmstead v. United States,
77 U.S. 438, 476 (1928):
Moreover, the tapping of one man's telephone
line involves the tapping of the telephone of
every other person whom he may call or who may
call him. -
If there were any doubt as to —_ © a possessory interest
in the telephone is required, such doubt was laid to rest in Katz v.|
21 - 22 -
; . ursuing the wiretap. Both kinds of evidence w r i
. | United States, supra. As Mr. Justice Stewart noted, “the Fourth iy © ’ 4 a pee ie
the instant case in su t of th i ims.
Amendment protects people, not places.” 389 U.S. at 351. In Katz — ae epanees eigins See intra
| | at ° However, there is a fund i
the Government argued that since the petitioner's conversations | i PP. 38-39. undamental distinction between
| | evidence which goes to decidi j band
were intercepted by tapping a telephone in a glass booth, he could. ) 9 ng the merits of a minimization claim
| and facts which must be sh
mot reasonably expect privacy. In rejecting this argument, the | Own in order to have standing to raise
, _ . such a claim.
Court said that by using a telephone, petitioner meant to exclude
"not the intruding eye— it was the uninvited ear." Id. at 352. | : *n support of its “evidence on merits equals standing”
Id | | | | 19
Indeed, the Court explicitly recognized the sanctity of conversa- | —s BS, the Gover nt cites United States v. Fury, supra.
tion itself: | in Fury, two wiretaps were authorized - the "Schnell" tap and the
Me leee than on infividuel in © beatsies | | "Fury" tap. After noting that some of the defendants did not have
pea $04 .: wy ig oe oe i | standing because they were not parties to any intercepted communi-
rely upon the protection of the Fourth cation, the Court,at p. 526, says:
Amendment. Id. at 352 (footnotes omitted).
:; , ~— - | Fury, on the other hand, has standin
See also Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, a | as an aggrieved person to challenge ate”
=" aa . ey the Schnell and Fury wiretaps. See New
304 (1967); United States v. Hunt, 505 F.2d 931 (Sth Cir. 1974). York Civil Practice Law and Rules ("CPLR")
et . | § 4506(2). Fury does not have standing,
The Government's principal argument is that, as Daviage and | however, to raise the issue of improper
| ” . : : ”"
Scott were parties to inculpatory calls and not to calls unrelated oa ae —a — ge epee
| d the Sed lave ie édadnios x henetenahene
an i
to the purpose of the wiretap, they do not have standing to raise | | intercepted is an invasion of Schnell's
; y/ rivacy, not Fury's. United States v. Po ta,
minimization. The fundamental fallacy of this position is that | ase > is 117, 19% (24 Gir.), cert. denie aa
oe oat | § 406 U.S. 948, 92 S. Ct. 2041, 32 L.Ed.2d 337
it confuses standing with evidence of a failure to minimize. there | (1972); People v. Fiorillo, 63 Misc. 2d 480,
' acts ; 481, 311 N.W.S 72d 574 (Montgomery Cty. ct.
are several types of evidence which show a failure to minimize. i i 1970). See Alderman v. ani ted Fron 394
. te bie aaa — i=<% U.S. 165, 171-76, Ct. ’ -Ed.2d 176
One consists of particular interceptions which could not possibly | (1969); United States v. Hinton, $43 F.24 1002
. 10ll, n. ir. .
have been interpreted as related to the wiretap when they were over
The Fury analysis is obscure at best. In the initial sentence
heard. See infra, at p.48n.64.Another is the agents' own in-court | |
Statements as to their conduct and the procedure followed | che “oust unequivocally states that yusy "as etanding ee on
I7 | j aggrieved person. Yet, the court then takes back in the second
“The Government attempts to bolster its proprietary interest
argument by citing United States v. Ramsey, supra, and United | sentence what it had seemed to confer in the first sentence. Thus,
States v. Hinton, supra. These two cases, however, both cite and
explicitiy rely on Poeta, thereby incorporating Poeta's misapplica- it would appear that Fury is setting up two standards: one for
tion of Alderman. Therefore, they suffer from the same analytic
weakness which afflicts Poeta. Standing to challenge wiretap evidence generally, and a second to
18. one Court of Appeals in Scott Ialso recognized this
distinction:
The question presented by the Government's T.
challenge [to standing] is really cage + 2 | Although it is not entirely clear what authority the Govern+
some of the appellees can introduce evidence | ment cites in support of this argument,Daviage assumes that Fu
based on og pen ge > a ro hn A 1 | is intended as support for the proposition. This assumption is
participate in order to attempt emons | | based on the court's citing of People v. Fiorillo, 63 Misc.2d
| that the intercepted conversations to which they ' 480, 311 N.¥.5. 574 (Montgomery Cty Ft STO) a Hen York trial
— a party were not, in = yee mage | a mcoe M | court decision squarely supporting "evidence on merits equais
=e Se yh ye ny Be or | Stancing.” See the discussion of Fiorillo, infra, at p. 23.
. . ad
| —_
—— ome ee |
Fury seeks to invoke the reasoning of those cases, it is incorrect
or t
- 23 -
20
raise tne minimization violation specifically. The opinion
then cites People v. Fiorillo, 63 Misc.2d 480, 31l N.Y.S.2da 574,
(Montgomery Cty. Ct., 1970). That trial court decision squareiy
supports the Government's “evidence on merits equals standing”
argument. The defendants had objected to the absence of provi-
sions in the warrant to minimize interception of innocent tele-
phone calls. After noting that the defendants had no innocent
calls intercepted, the court ruled: "The aggrieved persons would
be those whose unrelated telephone calls were intercepted." 63
Misc.2d at 481,
361 N.Y¥.S.2d at 576. Fiorillo is the only case
Daviage has discovered which supports this argument of the
21
Government. Regrettably the Fiorillo opinion contains no reason-
ing or relevant case authority. ?? Fury's mere citation of Fiorillo
thus adds no light.??
ae
The New York wiretap statute has its own standing and mini-
New York statute virtually tracks the language of Title III ,"™
United States v. Tortorello, 480 F.2d 764, 772 (2d Cir.), cert.
denied, 414 U.S. 866 (1973), it is admittedly difficult to con-
clude that New York's law sets out a double level standing criteria
but that Title III does not. Nevertheless, Daviage indulgés in the
assumption that Fury's reference to standing under the New York
statute was somehow not meant to pertain to standing under the
minimization provision. Otherwise, the first sentence of the above
quoted passage in Fury is directly contradictory to the second
sentence.
21-ohere is a hint of this argument at the conclusion of the
brief discussion of standing in United States v. Ramsey, 503 F.2d at
532. The court makes reference to the interpretation that "any
casual caller engaging in innocent conversation ,“would have stand-
ing. Id. (emphasis supplied). The court then notes that because all
of the calls in which Ramsey participated were inculpatory, he did
not have standing. See also Brief for the United States in Opposi-
tion to the Petition for Writ of Certiorari, Fury v. United States,
No. 76-6828 (Supreme Court of the United States, Oct. Term, 1977)
at 4-5.
22. where is virtually no analysis in Fiorjllo, and the only
authority it cites is United States v. Serrano, 317 F.2d 356 -(@@ Cis
1963). Serrano is not a minimization case, nor is it even an *
electronic surveillance case. The two paragraph per curiam decision
apparently holds (the facts are not stated) that Serrano could not
move to suppress evidence seized incident to the arrest of someone
else. Serrano does not stand for the proposition that one must have
made calls unrelated to the purpose of a wiretap order to have
Standing to raise minimization. '
23m make matters even more confusing, Fury invokes the pro-
prietary interest language of Poeta and Hinton. To the extent that
he reasons already given.
— - -—— =
mization provisions, and its own exclusionary remedy. secause "(t]he
~~!
.
iCarubia, 377 F.Supp. at 1107; United States v. Ceraso,
@ 24 -
Ultimately, the logic of the “evidence equals standing”
position rests squarely on a bootstrapping argument relying on
the nature of the calls intercepted rather than the parties to the
calls intercepted. Since the calls to which Daviage and Scott
were parties were inculpatory, so the argument goes, they should
not be heard to complain that those calls were intercepted in
gross and flagrant violation of the wiretap order. This reasoning
does violence to well-established fourth amendment principles. As
this Court said in Byars v. United States, 273 U.S. 28 (1927):
Ner is it material that the search was
successful in revealing evidence of a
violation of a federal statute. A search
prosecuted in violation of the Constitution
is not made lawful by what it brings to
light; and the doctrine has never been
recognized by this Court, nor can it be
tolerated under our constitutional system,
that evidences of crime discovered by a
federal officer in making a search...may
be used against the victim of the unlawful
search.... Id. at 29-30.
332 U.S. 581
See also United States v. DiRe, (1948).
The nature of the call was clearly not deemed rele-
vant in a number of minimization cases. For example, in United
States v. King, 478 F.2d 494, 506 (9th Cir. 1973), cert. denied,
417 U.S. 920 (1974), one defendant was held to have standing on
the basis of having had one messace sent at his direction over the
tapped line. Although this message was apparently inculpatory,
the court never inquired into the nature of the call in order to
resolve the standing issue. Rather, it determined that the cefendan!
had either been a party to an interception or been the person
against whom the interception order was directed. This approach
was followed in United States v. Bynum, 475 F.2d at 835-36, in
which, again, the court never determined the nature of the inter-
ceptions before ruling on standing. See also United States v.
355 F.Supp.
at 127.
By focusing on the nature of the calls, the Government would
ave one believe that because the calls were inculpatory there was,
fortiori, no conceivable minimizaticn issue. Daviage submits,
owever, that the issue remains vital regardless of the type of
re
- 25 -
calls intercepted. If a government agent attached a tape
recorder to a private telephone line and left it running for
thirty days with no monitoring, “*it would be difficult to argue
that the victim of those interceptions did not have standing to
raise failure to minimize. > If, fortuitously, it turned out that
all of the interceptions related to the purpose of the tape, the
Situation would nonetheless be that of a very fruitful general
warrant. In short, to make standing to raise minimization or,
for that matter, to make the merits of a minimization claim rest
on the nature of the items seized, injects into search and seizure
doctrine, a process that is tantamount to a general warrant-- the
very evil which the fourth amendment was designed to eliminate. 7°
Il. THRE ROR ET are SER CONOR Re EE EANCE pEUTALLING a
ereaan THE INTERCEPTION OF NON-PERTINEN OMMUNICATIONS,
A. The Constitutional Significance Of The Minimization Issue.
In the case under review, this Court confronts, for the
first time, the problem of construing the minimization requirement
of 18 U.S.C. § 2518(5) and of defining the appropriate criteria by
24.
Plainly the tape recording of a conversation without the
contemporaneous reception by a human ear constitutes an inter-
ception within the § 2510(4) definition of “intercept ."" Indeed,
this very point was decided in United States v. Turk, 526 F.2d at
658:
If a person secrets a recorder in a room and
thereby records a conversation between two
others an “acquisition” occurs at the time
*he recording is made.
25.
This hypothetical fact situation differs from the instant
case insofar as there was actual monitoring in this case. Of
course, where there is a live ear overhearing each call, the
Situation is aggravated.
26.
See Camara v. Municipal Court, 387 U.S. 523 (1967).
- 26 -
which compliance is determined. It is important to note at this
point, however, that this Court's construction of § 2518(5) is
laden with constitutional implications and its delineation of
standards is necessarily limited by fourth amendment considera-
tions. *’re is well-settled that the concerns which guided the
drafting of the fourth seinen oni equally applicable to a
search and seizure effected by electronic Surveillance. Indeed,
it is precisely the revulsion toward the general warrant which
prompted some to insist that electronic surveillance can never be
“reasonable” within the meaning of that amendment. *? As stated
by Mr. Justice Brennan in his dissenting opinion in Lopez v. wana
States, 373 U.S. 427 (1963),
electronic surveillance is almost in-
herently indiscriminate, so that com-
pliance with the requirement of particularity
in the Fourth Amendment would be difficult;
Id. at 463,
Nevertheless, this Court has unequivocally established, in the last
decade, that the stringent requirements of the fourth amendment
applicable to conventional search and seizures are equally appli-
cable to electronic surveillance; it is no longer open to question
2/.
Mr. Justice Miller, in his concurring Opinion in Boyd v.
United States, 116 U.S. 616 (1886), stated the underlying {=F
While the framers of the Constitution
had their attention drawn, no doubt, to
the abuses of this power of searching
private houses and seizing private papers,
as practiced in England, it is obvious
that they only intended to restrain the
abuse, while they did not abolish the power.
Hence it is only unreasonable searches and
seizures that are for en, and the means
of securing this protection was by abolishing
searches under warrants, which were called
general warrants, because they authorized
searches in any place, for anything. Id. at 641.
(Emphasis in original).
“— e.g., United States v. Leta, 332 F.Supp. 1357, 1360 n.
4 (M.D.Pa. 19 ; Unit tates v. Focarile, 340 F.Supp. 1033, 1046
(D.Md.), aff'd. gs nom. Unit States v. Giordano, 469 F.2d 522
(4th Cir. I5%0), rev.'d on other grounds, -S. 505 (1974).
29+ ur, Justice Brennan posits that the “anomalous exceptions”
to fourth amendment principles in Olmstead v. United States, 277
-S. 438 (1928), Goldman v. United States, -S. 42), and
n Lee v. United States, oBe 52), were in part the resu]
e pervasive fear that if electronic surveillance were deemed
be within the reach of the Fourth Amendment, a useful technique
f law enforcement would be wholly destroyed,...” Id. at 463.
- 27 = » wh
that electronic surveillance may be “reasonable.” Osborn v. United
Tt the surveillance was limited, both in
| States, 385 U.S. 323 (1966); Berger v. New York, 388 U.S. 41 ' scope and in duration, ... . The agents
2S confined their surveillance to the brief
(1967); Katz v. United States, 389 U.S. 347 (1967). periods during which he [petitioner] used
the telephone booth, and they took great
In establishing the standards by which the constitutionality care to overhear only the conversations
of the petitioner himself. Id. at 354.
| of electronic surveillance under the fourth amendment is assessed, | (footnotes omitted).
| this Court focused on the requirement of particularity which acts The constitutionality of a search and seizure, then, is
| as protection against the general warrant. In Osborn v. United heavily dependent upon satisfying the requirement of particularity.
| States, supra, an attorney for James R. Hoffa was convicted of The drafters of Title III, seeking to meet the standards de-
| endeavoring to bribe a member of the jury panel ina prospective lineated in Osborn, Berger and Katz, were well aware of this and
federal criminal trial. Admitted into evidence was a tape record- forged a procedure meant to conform with constitutional demands. °°
ing of a conversation made between the attorney and a government This Court, in deciding what compliance with § 2518(5) entails,
informer, who had a recording device concealed on his person during must do so with this constitutional background in mind. However,
that conversation. Noting that the device was used “under the this question, “fraught as it is with substantial constitutional
most precise and discriminate circumstances, circumstances which overtones", °+ can be settled as a matter of statutory construction.
fully met the ‘requirement of particularity',” Id. at 329, this B. Standards povernang The Determination Of compliance
Court held that the use of the device and the recording itself was
Section 2518(5) of Title 18 provides in pertinent part:
permissible “for the narrow and particularized purpose of ascer-
Every order...shall contain a provision
taining the truth oi the affidavit's allegations.” Id. at 330. . that the authorization to intercept...,
shall be conducted in such a way as to
In its landmark decision in Berger, supra, this Court ; minimize the interception of communications
not otherwise subject to interception....
vigorously reasserted the importance of the fourth amendment's
The statute provides no further clarification as to the meaning
requirement of particularity. Mr. Justice Clark stated that
Jot “minimize. ">* Although this Court has not previously construed
the statute's failure to describe with
particularity the conversations sought the provision, several lower federal covwrt decisions make it
gives the officer a roving commission to
"seize" any and all conversations... . AS clear that § 2518(5) does not prohibit tha incerception of any non-
with general warrants this leaves too much ha
to the discretion of the officer executing rtinent conversations, but directs the Government to conduct the
the order. Id. at 59. (emphasis supplied).
iretap in a manner designed to reduce to the smallest degree
Relying for the most part on this defect, but also noting the lack
ssible the interception of conversations unrelated to the criminal
of other protective procedures, this Court held that the New York
ctivity under investigation. United States v. Clerkley, 556 F.2d
statute permitted "a trespassory invasion of the home or office,
709, 716 (4th Cir. 1977); United States v. Armocida, 515 F.2d 29
by general warrant, contrary to the command of the Fourth Amendment."
30.
Id. at 64, (emphasis supplied.) See Bynum v. United States, 423 U.S. 952 (1975) (Mr. Justice
_ rennan, dissenting from denial of petition for writ of certiorari).
The most recent case of this trilogy, Katz, supra., again 31
"Scott v. United States, 425 U.S. 917, 925 (1976) (Mr. Justi
emphasized that the requirement of particularity is an essential rennan, dissenting from denial of petition for writ of certiorari).
32.
The legislative history of Titie III offers no definition
f "minimize", but merely reiterates the language of §2518(5). See
-Rep. No. 1097, 90th Cong. 2nd Sess. 103, reprinted in 1968 U.S.
Code Cong. & Ad. News at 2192. a
component of a reasonable search and seizure. This Court held that,
sent antecedent judicial authorization and determination of
: robable cause, the surveillance in that case violated the fourth
ndment. However this Court also noted that
ySee Berger, 385 U.S. at 57. Section 2518(5), then, “requires that
- 29 -
(3rd Cir.), cert. denied, 423 U.S. 858 (1975); United States v.
Cox, 462 F.2d 1293 (8th Cir. 1972), cert. denied, 417 U.S. 918
(1974),
Such a construction of the requirement, while entirely con-
Sistent with the text of § 2518(5), also accurately reflects the
intention of the drafters of Title 111. The statutory scheme
represents a balance, fashioned by Congress, between the competing
Values of law enforcement and the right to privacy. ?? By carefully
prescribing the circumstances under which electronic surveillance
may be authorized in accord with Berger v. New York, Supra, and
Katz v. United States, Supra., Congress sought to afford effective
techniques to combat Organized crime while preventing “improper
invasion of the right of privacy provided by the Fourth Amendment
and...the indiscriminate seizure of communications...." United
States v. Focarile, 340 F.Supp. at 1044. In a similar manner, the
“minimization” provision is a balance between these conflicting
goals. While recognizing that a requirement of absolute elimina-
tion of interceptions of innocent communications would seriously
jeopardize the Statutory purpose of crime control, °4 the drafters
of Title Irr designed minimization as a safeguard against any
invasion of privacy greater than necessary under the circumstances.
measures be adopted to reduce the extent of such interception to a
practical minimum while allowing the legitimate aims of the Govern-
ment to be pursued.” United States v. Turner, 528 F.2d 143 (9th CirJ
ert. denied, 423 U.s. 996 (1975). 35
3+ See Pp.12-14, supra.
34.
See United States v. B num, 485 F.2d 490, 500 (24 Cir. 1973)
acated on other grounds, 417 U.S. 903 (1974).
M4
'
35.
“What is important is that the facts in the application on a
¢ase-by-case basis justify the period of time of the Surveillance.”
- Rep. No. 1097, 90th Cong., 2nd Sess. 101, reprinted in 1968 U.S.
Ode Cong. & Ad. News at 2190. United States ¥. James, 494 F.2d 1007
-C.Cir.), cert. denied, -S. ; see also
nited States v. Armoci &, supra; United States v. Clerkley, supra.
,
*
_—~-
ee 0 ee eee eee
- 30 - a
l. The Good Faith Test.
Proceeding on the proposition that the surveillance
must be "reasonable" to comport with § 2518(5), the federal
courts have shaped a standard by which compliance with the minimi-
zation requirement can be assessed. The cases establish that the
statutory command of minimization is Satisfied if (1) the agents
manifest a good faith effort to minimize the interception of
innocent communications, and (2) the methods employed in minimiza-
tion are reasonable in light of the circumstances. The courts
have made clear that absent good faith efforts to minimize, the
second inquiry should not be reached; the conduct of the surveil-
lance is unreasonable per se. On the other hand, where attempts
to comply are found, they must still conform to a standard of
reasonableness.
This two-pronged standard’ began its development in the
early cases addressing the minimization issue. In 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. Ss. 920 (1974),
the district court found that the Government had failed t> comply
with the minimization requirement. The authorizing order
specified the communications which could be lawfully intercepted.
However, the court found that the wiretap was in operation for
forty-five days, twenty-four hours a day, and that the agents
recorded every conversation regardless of the parties to or nature
of the communication. Stating that"compliance with the provisions
lot the authorizing order requires those responsible for the execu-
tion of the wiretap to devise some means of limiting intercepticn.”"
to specified conversations, 335 F.Supp. at 541, the court was
skeptical of the agents' adnerence to the minimization requirement.
—ee—_-—- oe
a
It referred to one intercepted conversation which entailed forty-
four pages of transcript. The conversation was completely irrele-
7 with the exception of two pages in the middle of the tran-
36 «me Standard was first, and most clearly, articulated in
nited States v. Tortorello, 480 F.2d 764 (2d Cir.), cert. denied,
- See scussion, infra, at Pp. 33-35.
eee ee eee ae ee ee ee
script. The Court stated:
Nevertheless this Court is reluctant
to find that this conversation should have
been intercepted. The object of minimiza-
tion is to prevent the wiretap from turning
into the kind of general search and whole-
sale invasion of privacy decried by the
Supreme Court in Berger v. New York, supra,
and Katz v. United States, supra. By justi-
fying blanket surveillance on the ground
that something relevant might turn up at
any moment, the requirement of minimization
would be rendered nugator
pr Lacy non-existent. Id emphasis
suppli ;
The court acknowledged the difficulties inherent in electronia
surveillance but clearly recognized the threat to privacy should
those difficulties be employed as justification for total inter-
ception. Indeed, the court pointed out that when the competing
interests of law enforcement and privacy clash, deference must
be given to the latter “out of respect for the parties’ constitu-
tional rights and for the limited system which Congress s0
painstakingly created.” Id, at 542,
The opinion in United States v. Focarile, supra, represents
an early effort by a court to carefully analyze the issue of
minimization and to articulate guidelines for determining com-
pliance with § 2518(5).
In Focarile, as inthe instant case, there was total intercep-
tion for thirteen days. Finding neither clarity nor consistency
among the three cases construing the minimization provision -
United States v. King, 335 F.Supp. 523 (S.D.Calif. 1971); United
States v. Leta, 332 F.Supp. 1357 (M.D.Pa. 1971)?’ and United States
v. Scott, 331 F.Supp. 233 (D.D.C. 1971) = the Court stated:
Scott, King and Leta, as well as a common
sense approach to the problem lead one to the
conclusion that there can be essentially two
different types of violation of the minimiza-
tion requirement of § 2518(5). The first type
of violation would be the one committed if
there had been no attempt at all to minimize
the interception of “innocent” calls. This
ee ee
37.
Although Leta does not elaborate on the issue of minimiza-
| tion, it is significant insofar as it substantiates the good faith
| test. Recognizing that 1008 interception may be necessary under
| Some circumstances, and that while this is not unreasonable per se,
| "it may also be that 100% recording will take place without an
effort to minimize where possible. In such a situation, 18 U.S.C.
,; § 2518(5) will have been violated...." Id. at 1360 n. 4.
first type of violation would obviously
be a blatant violation of the provisions
of Title III and, in addition, would
probably violate the precepts of the
Fourth Amendment. The second type of
violation of the minimization require-
ment would be the se committed if there
is an inadequate method or effort to
minimize. Id. at 1046. (footnote omitted).
Thus the court emphasized that the threshold question is
whether there has been any effort or “good faith” attempt to
comply with § 2518(5). Absent such attempt, the agents' conduct
is unreasonable under the terms of Title III and, under the
command of Berger and Katz, violative of the fourth amendment. But,
should there be manifestations of good-faith attempts to comply
with § 2518 (5) >*the inguiry then focuses on the adequacy of those
attempts. As numerous cases make clear, those efforts are
measured in terms of reasonableness. >” See discussion, infra, at
pp. 43-52.
On the issue of compliance with the statute, Forcarile pur-
ports to distill several fundamental ideas from the few previous
cases. But more importantly, it establishes a basic test for
ascertaining the propriety of governmental conduct ,and that
approach has been accepted in subsequent decisions.
A further illustration of the development of this test is
United States v. Sisca, 361 F.Supp. 735 (S.D.N.Y. 1973), aff'd,
303 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008 (1974). The
lGovernment sought to justify total interception because of the
Yo
The cases have come to recognize several factors as mani-
festing the government's good faith efforts to comply with the
nimization requirement. See, e.g., United States v. Hinton, 543
-2d 1002, 1012 (2d Cir.), cert. ol 429 U.S. 980 (1976); United
tates v. Rizzo, 491 F.2d 215, Cir.), cert. denied, 416 U.S,
+ United States v. Daly, 535 F.2d 434, 441 (8th Cir. 1976)
(system of “spot-checking” to insure that Pye ree Ee initially
nnocent did not turn to pertinent subjects); Unit States v.
lerkley, 556 F.2d at 718; United States v. Tortorello, 480 F.2d at
; United States v. Cox, -2d at , (judicial supervision) ;
nd United States v. Turner, 528 F.2d at 158; United States v.
alcone, - Supp. , 887 (D.N.J. 1973), aff'd, 505 F.2d 478
r r. 1974), cert. denied, 420 U.S. 955 (1975); United States
~ Lanza, 349 F.Supp. 925, 932 (M.D.Pla. 1972) (instructions to the
gents executing the wiretap).
39+ one Focarile court found the efforts to minimize reasonable
under the circumstances.
=o 9
- 33-
Suppressed the wiretap evidence. Tortorello concluded: “In short,
inherent difficulties faced by the monitoring agents. The court
the court [in United States v. Scott, 331 F.Supp. 233 (D.C.C. 1971)]
; ided that
acknowledged the practical problems involved, yet decided tha found that there was no attempt by the officers to devise some
the absence of any precautions to insure
minimization here, the number of such means Of limiting interceptions.” 480 F.2d at 784.
j lack of ,
Sceueedanen aiaindemas Gale the con- The court in Tortorello compared the conduct of the agents
infant aah scan ; }
ments were pot satisfactorily ro + al who executed the wiretap in that case with the conduct of the
Id. at 745.
agents in Scott. It noted that the agents in the case before it
The import of this language is precisely that the agents made showed "good judgment" in devising patterns to guide their minimi-
no attempts to minimize. zation efforts. Moreover, they considered the identity of the
The good faith test developed by these district court cases caller, the guarded nature of the conversation, the tone of voice
has been uniformly adopted among the circuits. The appellate and the subject matter and "[a]s soon as it was determined that
opinions consistently require that the monitoring agents make good any conversation overheard was not pertinent, all interception
faith attempts at minimization, either explicitly, by finding the immediately ceased." 480 F.2d at 783. Referring to United States
bequisite good faith effect, of inplicitiy, by immediately pre- v. King, supra, and United States v. Sklaroff, 323 F.Supp. 296
: . With
Seating te Ceteeming the reasenablenses Of the ettenpts 7 (S.D.Fla. 1971), the court framed the test which should govern
the notable exception of the Court of Appeals for the District
= + the determination whether there has been compliance with the
of Columbia in Scott II, no court has found compliance with § 2518 minimization requirement:
(S) where the record shows, as it does here, that the agents made Tt is clear from these Gecisions thet o
n> effort to minimize the interception of non-pertinent communica- ; - cdi
eteds. s after reviewing the monitoring log and hearing
the testimony of the monitoring agents, it is
In United States v. Tortorello, supra, the appellant contended emgwiedly Eas anna glo he praged
that the surveillance was conducted in a manner that resulted in seeamee suite a vat ptr Be: er Mw 1 Al
unnecessary monitoring and recording of irrelevant conversations. 480 F.2d at 784.
This, he urged, violated the fourth amendment and the provisions Since “the officers respected the privacy of the persons under
of the authorizing order requiring minimal interception of non- surveillance and utilized effective safeguards against excessive
pertinent communications pursuant to § 2518(5). The court stated: intrusion", Id. at 785, the court ruled that the wiretap evidence
“The question raised here is whether the executing officers took was properly admitted. *?
reasonable measures to minimize the interception of irrelevant
communications." 480 F.2d at 783 (emphasis supplied). Looking to 41+ See Peopis 1 Fioxs 41 N.Y¥.2d 245, 392 N.¥.S.2d 257 (1976),
here the court of appeals construed the virtually identical mini-
the existing case law for guidance, the court chen discussed the
ization requirement of New York C.P.L. 700.30, subd. 7. Quoting
nited States v. Tortorello, Supra, the court stated:
Minimization may be defined as a good faith
and reasonable effort to keep the number of 39 j--
district court's initial opinion in the instant case which
a non-pertinent calls intercepted to the
Because the motion to suppress the evidence derived from smallest practicable number. Id. at 262.
the wiretap was not timely made, the court's discussion on the at court recently reaffirmed this application of the two-prong
merits is dicta. The Court felt, however, that a discussion would tandard in People v. Brenes, 42 N.¥.2d 41, 396 N.¥.S.2d 629 (1977),
be "desirable" in light “of the importance and relative novelty of tating that "the prinasy ausstion is whether, realistically con-
the minimization question and the evolving law or the subject.” idered, there was a good faith attempt to affirmatively avoid inter-
Id. at 742. ption of conversations unrelated to the crime or crimes authorized
be investigated...." Id. at 633.
- 3§ «
The Tortorello test for assessing compliance with the mini-
— — _——
mization requirement clearly contemplates more than merely
reasonable results. reasonableness of conduct
At the very least,
must include a good-faith effort to avoid that intrusion. |
This good faith test in assessing compliance with the minimi-
zation requirement has been consistently applied in the Second
Circuit. In United States v.
Bynum, 485 F.2d 490, 501 (24 Cir.
1973), vacated on other grounds, 417 U.S. 903 (1974), where total
interception was held reasonable under the circumstances, the
- urt discusses the good faith requirement in the context of
= 42 . J a
judicial supervision, stating that “the degree of judicial super-
vision is an important factor in determining whether a good faith
effort to minimize was attempted.” In United States v. Manfredi,
|
|
488 F.2d 588, 600 (2d Cir. 15973), cert. denied, 417 U.S. 936
(1974), the court of appeals again had occasion to determine com-
pliance with § 2518(5). It reiterated the principle established
in Tortorello, stating that the statute requires "that the methods
used to effect minimization be in good faith and reasonable.”
}
|
re
court held that the Government had made a prima facie showing of |
compliance with the minimization provision, attaching great
significance to the trial court's finding of good faith. *?
The validity of the good faith test was most recently affirmed
in United States v. Hinton, 543 F.2d 1002 (2d Cir.), cert. denied,
429 U.S. 980 (1976). In that case, the agents conducting the |
surveillance took several steps to minimize the interception of |
innocent communications, such as “spot checkinc” to insure that
conversations initially non-pertinent did not become ones subject
to interception, and employing a maximum time period of five
minutes to ascertain the nature of the call. Further, this was
“not a case where every conversation coming into and emanating
from the wiretapped residences was recorded and overheard in its
642.
See infra,
43.
The court stated: “We are aided by the trial court's find-
ing that the law enforcement agents here made a ‘good faith effort
to minimize’... ." 488 F.2d at 599.
at p. 36.
a
ae LIE re
- 36 -
entirety,” Id. at 1012, as is the instant case. To determine com-
pliance with the minimization requirement, the court stated:
We must look to whether the agents devised
a reasonable means of limiting interception,
anc to whether they utilized those safe-
wards in good faith. Id. at 1012 (emphasis
supplied).
The court held that the agents complied with the requirement,
Stating that “it appears that a good faith attempt was made to
i
_limit intrusion into private intimacies so as to preserve the
|Privacy interests of those whose conversations were eines
| Id. at 1012. 4
This standard has been widely adopted in the other circuits.
al
In Unitec States v. Clerkley, supra, the Court of Appeals for the
Fourth Circuit agreed that a showing of reasonableness necessarily
requires a showing of a good faith attempt to minimize. Quoting
Tortorello, it stated:
The statute is deemed to be satisfied
if "on 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.” 556 F.2d
at 716.
|The court's holding that the Government had complied with the
requirement was due in part to its finding that "[w]here the
authorizing judge required and reviewed interim reports, courts
have been more willing to find a good faith attempt at minimiza-
tion.” Id. at 718. Similar language of good faith is present in
United States v. Quintana, 508 F.2d 867 (7th Cir. 1975) 45
44 +See also United States v. Fino, 478 F.2d 35 (24 Cir. 1973)
icert. denied, 417 U.S. 4), where the court accepted "the
finding of the district court that ‘the evicence established a good
faith effort on the part of the monitoring agents to discontinue
all calls believed to be of a non-pertinent nature.'" Id. at 38.
45-75, the instant case, the judicial supervision was exercised
in an effort to enforce minimization was inadequate at best. See
Ciscussion infra, at 51-52.
@ 37 «
Numerous other cases amply demonstrate the continued vitality
of the requirement that the executing agents make good faith
attempts to minimize. See United States v. Daly, 535 F.2d 434,
442 (8th Cir. 1976); United States v. Armocida, 515 F.2d 29, 42
(3rd Cir.), cert. denied, 423 U.S. 858 (1975); United States v.
Chavez, 533 F.2d 491 (9th Cir.), cert. denied 426 U.S. 911 (1976);
United States v. Turner, 528 F.2d 143, 156-57 (9th Cir.), cert.
denied, 423 U.S. 996 (1975). 46
The good faith requirement is not Only firmly embedded in the
case law but is essential in order to insure that the protection
for privacy which is built into Title III is more than theoretical:
Once the decisive test of the validity
of an interception becomes its "“objec-
tive reasonableness,” there is grave
danger that determinations of reason-
ableness will be dictated by hindsight
evaluations of evidence uncovered by
wiretaps.
- -
[Such a test] appears to destroy any
incentive for law enforcement agents
conducting wiretap surveillances to
respect the rights of citizens to
privacy in non-criminal telephone
conversations in advance of their
intrusion.
The good faith test effectively mitigates the dangers of retro-
active validation. By requiring an initial regard for the right of
privacy, it insures that, at the very least, § 2518(5) will
encourage the development of techniques designed to limit unnecessai
intrusion. To the extent that the good faith test is eliminated
Or relegated to a subordinate role,* the minimization provision
cert. denied, 425 U.S. 944
40.0. Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir. 1975),
1976), where the court found that a
goo ait efense to liability under 18 U.S.C. § 2520 will be
Sstablished where the agents demonstrate that they had a subjective
ood faith belief that it was constitutional to install warrantless
iretaps under the circumstances of the case and that this belief
as itself reasonable.
*"-goott 12, $22 F.24 at 1336 (Statement of Ciresit Judge
Robinson, as to why he would grant rehearing en banc).
48. onis is precisely what the court in Scott II did. See
Hiscussion, infra, at p.40.
ee ee
- 38 -
becomes largely a hollow protection.
2. The Application Of The Good Faith Test In.The
Scott Litigation.
In the first interlocutory appeal in these proceedings,
the court of appeals determined that the lower court had applied
an improper standard in finding that the agents failed to comply
with the minimization requirement. *? The court stated:
As James and other cases make clear,
any minimization determination requires
an assessment of the reasonableness of
the agents’ efforts in light of the
purpose of the wiretap and the information
available to them at the time of inter-
ception.
7- *
It appears that the trial court's
conclusion that the agents made no
attempt to minimize stemmed in large
part from its conclusions that they
failed to succeed. The court relied
heavily upon the fact that some sixty
percent of the intercepted conversations
appeared to be unrelated to narcotics
transactions.
-
This court's intervening opinion in
James indicates that an assessment of
the reasonableness of agents’ attempts
to minimize must be judged on a consider-
ably more particularized basis. Scott I,
304 F.2d 194at198. (D.C. Cir. 1974).
Following remand, the district court made the following
findings of fact:
3. That Special Agent Cooper and the
monitoring agents knew that the Statute
and the authorization required such
minimization.
4. That the monitoring agents made no
attempt to comply with the minimization order
of the Court but listened to and recorded all
calls over the Jenkins telephone. They showed
no regard for the right of privacy and did
nothing to avoid unnecessary intrusion.
——3—-
“The decision in this first interlocutory appeal was held
in abeyance pending issuance of the opinion in United States t¥974)
James, 494 F.2d 1007 (D.C.Cir.), cert. denied, 7I5 U.S. 1020 (I ‘
In James, the court unequivocally adopte e Tortorello standard.
Nevertheless, in applying the test, James did not discuss the .
good faith efforts of the agents. It is not Clear from the = on
whether the court implicitly found good faith efforts or merely
ignored this standard despite the purported adoption of the
Tortorello test.
_
= 39 «
10. That at the hearings in April,
1971, Special Agent Glennon L. Cooper
testified under oath...that he and the
agents working under him knew of the
minimization requirement but made no
attempt to comply therewith. At the
hearing on remand Agent Cooper repeated
that testimony as follows [in part]:
Q Do I understand from you then that
the only time that you considered minimiza-
tion was when you found that you had been
connected with a wrong number?
A That is correct, Your Honor.
Se 8 ©@
13. 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 ths statute and the order
of authorization.
These findings of facts are amply supported by the testimony of
the Government's witnesses. They repeatedly stated that there were
no efforts to minimize the interception of innocent conversations.
Agent Cooper conceded that "there were no limitations placed on the
interception of calls in this particular operation, in this
51
particular instance." Indeed, this issue is not disputed by the
Government, whose counsel stated during argument on remand that
"we have never disputed at any point in this litigation that any
attempts were made as a discretionary matter to minimize and I
52
think that's what the agent said." Confronted with the Govern-
30. pindings of Fact, Conclusions of Law and Order, United
States v. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United
States District Court for the District of Columbia) at 3-6. See the
Addendum to this Brief, infra, at III-vI.
31+ transcript of Proceedings of October 15, 1974 in United
States v. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United _
States District Court for the District of Columbia), at 98. A copy
lof the transcript is included in the original record in this Court.
32+ nranscript of Proceedings of October 18, 1974 in United
States v. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United
tates District Court for the District of Columbia), at 1.
A copy of the transcript is included in the original record in this
Court.
P|
- 40 -
ment's concession that no efforts were made to comply with the
minimization requirement, the district court held that "{t)he
admitted knowing and purposeful failure by the monitoring ascents
to comply with the minimization order was unreasonable">- and
suppressed all the evidence derived from the wiretap.
Following the Government's second interlocutory appeal, the
court of appeals again reversed the district court's decision to
Suppress the wiretap evidence. In assessing compliance with the
minimization requirement, the court focused on the reasonable-
ness of the ultimate results, and discarded the subjective intent
s
of the agents as an independent factor to be satisfied:
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 interceptions will be found to
Rave been reasonable. On the other hand,
even if the agents make their best efforts
ad to comply, the ultimate integceptions may
prove to be so unreasonable that suppression
is necessary. The presence or absence of
a good faith attempt to minimize on the part
of the agents is undoubtedly one factor to
be considered in assessing whether the
minimization requirement has been satisfied
but the decision on the suppression motion
must ultimately be based on reasonableness
of the actual interceptions and not on whether
the agents subjectively intended to minimize
their interceptions. Scott II, 516 F.2d at 756
(footnote omitted and emphasis supplied).
In effect, Scott II utilized a “Monday-morning quarterback”
mn
standard where the interception of a communication is justified
on the basis of a hindsight evaluation of reasonableness. This
approach distorts the Tortorello standard and, as a practical
matter, makes the agents' subjective intent irrelevant. By stating
that "if every call intercepted had been narcotic related, there
would have been no occasion to consider whether it was necessary
to minimize", Id., the court permits the ultimate results to
justify an admitted failure even to attempt compliance with the
minimization. This is tantamount to permitting an illegal search
53. pindings of Fact, Conclusions of Law and Order, United
States v. Scott, et al., Crim. Nos. 1088-70 and 1089-70 ‘United
States District Court for the District of Columbia) at 7. See the
7?
al
Po to this Brief, infra, at VII.
i
|
eee ee
| is it material that the search was successful in revealing
= 4] «-
to be legitimized by what is found. In the context of traditional
search anc seizure doctrine, this Court has made it clear that the
results of a search are not to be utilized in determining reason-
ableness.
In United States v. DiRe, 332 U.S. 581 (1948), this
Court spoke to the argument that the fruits of the search manifest
its reasonableness, responding: "We have had frequent occasion to
point out that a search is not to be made legal by what it turns
up," Id. at 595 (footnote omitted). See also Byars v. United
States, 273 U.S. 28, 29 (1927) in which the court stated: "Nor
evidence of a violation of a federal statute." To the extent that
the courts prefer "to consider wiretaps within the framework
of the general law of search and seizure and to follow its
principles," this Court has already declared the impropriety of
post-search justification. See,e.g., United States v. King, supra,
Allowing post-hoc analyses to control the determination of
compliance places too high a value on the Government's law enforce-
ment objectives at the expense of constitutionally protected
privacy. The court in United States v. King stated:
The requirements of the Fourth Amendment
cannot be met by interceptions executed
in a blanket fashion with the hope that
the passage of time may invest them with
a relevance not immediately apparent.
335 F.2d at 543.
Moreover, as the courts have recognized, retrospective analyses
are often misleading and inaccurate. They represent merely an
advocate's portrayal or characterization of what appeared to the
agents during the surveillance.»
The call analysis relied upon by Government in the instant
case suffers from these infirmities. The district court found:
12. The "call analysis" was made by Mr.
Kellogg in his capacity as an advocate
without consultation with any federal
narcotics agent and the categories were
) >4-uinimi zation is not to be judged by a rigid hindsight that
ignores the problems confronting the officers at the time of the
investigation. United States v. Vento, 533 F.2d 838 (3rd Cir. 1976) .
@ 62 «
not shown to, looked at or validated by
any such agent as “actual and realistic
categories for agents to use in manning
a wiretap." Mr. Kellogg described the
"call analysis” as "...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 relativel
sophisticated delineations in the course
of the intercept. They did nolt) insofar
as I understand. Tr. Hearing on Remand,
De 436 coves
12. [sic] The "call analysis" conflicts
with the reports and characterizations of
the intercepted calls as made and deter-
mined by the monitoring agents whese con-
duct is controlling in this case.
The courts which have addressed this issue have uniformly stated
that reasonableness of interception and of compliance with
§ 2518(5) must be determined in light of the facts known to the
agents at the time. See,e.g., United States v. James, 494 F.2d 1007,
1022 (D.C.Cir. 1974), cert. denied, 426 U.S. 911 (1976); United
States v. Laborga, 336 F.Supp. 190, 196 (W.D.Pa. 1971); United
States v. Falcone, 364 F.Supp. 877, 887 (D.N.J. 1973), aff'd, 505
F.2d 478 (3rd Cir. 1974), cert. denied, 420 U.S. 955 (1975).
Establishing reasonableness of the agentg' conduct via a call
analysis prepared after-the-fact and incorporating characteriza-
tions admittedly foreign to those used by the executing agents
contradicts the general principle that “[t]he test of whether or
not the minimization requirements are complied with is not retro-
spective but contemporaneous." United States v. Sisca, 361 F.Supp.
56
at 735.
55. bindings of Fact, Conclusions of Law and Order, United
States v. Scott, et al., Crim. No. 1988-70 and 1089-70 (United 4
th
States District Court for the District of Columbia) at 5-6. See
Addendum to this Brief, infra, at V-VI.
56.
The district court emphasized this problem during a “ene
call” hearing:
This "call Analysis" differs from the call
analysis that was made by the agents who were
on the spot and the ones who were directed to
comply with the order of minimization. Under
mes 4 circumstances, there was a complete viola-
tion and I consider that even if the "Call Analysis”
were correct, it is in the teeth and in derogation
of the characterizations that the persons who were
charged with the duty to make the characterizations
ma
de.
Transcript of Proceedings of November 8, 1974, in United States v.
Scott, et al., Crim.Nos. 1088-70 and 1039-70 (Unit ates strict
rt for
e District of Columbia), at 14-15.A copy of the besoin
is included in the original record in this Court.
-_—_— = - -
\for recorded conversations. See, e.g., United States v. King, supra,
fwhere the Government argued that only fourteen per cent of the calls
= 43 <-
Daviage does not contend that such “"Monday-morning quarter-
backing” is totally inap>ropriate. Although post-hoc analysis
cannot be utilized as the sole basis for establishing compliance
with § 2518(5), it can provide a "starting point”, United States
v. Armocida, 515 F.2¢ at 43, or "offer some insight on that issue."
United States v. Focarile, 340 F. Supp. at 1049. However, such use
must be narrowly limited when there is other direct and explicit
evidence pertaining to the agents' compliance with the minimization
reguirement. Indeed, in the instant case, the circumstantial evi-
gence provided by the call analysis must be viewed with
-
caution.> There was ample testimony from the agents concerning
their knowledge, conduct and intentions which makes their clear disre-
gard for § 2518(5) manifest; the call analysis is an obvious
attempt to rationalize the agents' behavior and should be accorded
appropriate weicht.
3. Reasonableness Of The Efforts To Minimize Interception
of Non-Pertinent Communications.
The application of the two-pronged Tortorello standard
to the facts of this case requires reversal because of lack of
good faith attempts to comply with § 2518(5). However, should this
Court find that the agents'good faith has been demonstrated, or
Gecide that this test should not be applied, it is necessary to
determine the reasonableness of the actual minimization. The
courts have identified several factors that determine the decree
of minimization required in a given case. Typical of these cases is
Unitec States v. James, supra , which delineates four factors:
i) scope of the criminal enterprise under investigation; ii) loca-
tion and operation of the wiretapped telephone; iii) the Govern-
ment's expectation of the contents of the calls; and iv) judicial
Supervision by the authorizing judge. See United States v. Clerkley,
556 F.2d at 716-718; United States v. Daly, 535 F.2d at 441-442;
United States v. Quintana, 508 F.2d at 874-875. Assuming arguendo,
—— —
of ern the instant case, the Government's call analysis focuses
On categories of calls and relies on percentages to show proper
minimization. However, more revealing might be percentages of time
were subject to minimization. The court deemed such percentage mis-
leading because the percentage of calls was not necessarily propgr- |
tional to time. 335 F.Supp. at 542.
EDS NY |
<7)
—————— =
ee:
Findings of Fact, Conclusions of Law and Order, United States
e 44 «
that this Court needs to reach the issue of the reasonableness
of actual minimization efforts, the record demonstrates that 100%
interception was not reasonable compliance with the statutory
requirement of minimization.
i) Scope of The Criminal Enterprise Under
nvestigation.
Although the court in Scott II stated that "[t]he
trial court made no specific findings with respect to this
factor," 516 F.2d at 758, the district court did consider it:
That the intercept revealed that the criminal
Operation under investigation was of lesse;
dimension than was originally anticipated.
Scott IT makes short shrift of this factor, asserting that a
“thorough surveillance” was justified because of the "(operation
of] a fairly extensive narcotics business." Id. at 758. The sur-
veillance here was much more than "thorough"; it was unlimited.
Moreover, the scope of the enterprise was considerably less than
that in James, which involved forty-five persons charged in seven
separate indictments. Although the cases have recognized that
large-scale, far-flung criminal enterprises may justify a lesser
a the testimony adduced at the evidentiary
Gegree of minimization,
hearing revealed that the identities of conspirators gradually
became known and that the actual scope of the operation was sub-
stantially narrower than originally believed. However, despite the
trial court's explicit finding of fact, the court of appeals found
that, while smaller geographically, the conspiracy's complexity
District Court for the District of Columbia) at 3. See the Addendum
to this Brief, infra, at III. Note, however, that Scott II incorrectl
applies this finding only to the third criterion.
99+ united States v. Chavez, 533 F.2d at 493-494; United States
v. Clerkley, " at "
iv. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United States
- 45 -
remained unchanged. Scott II, at 759. The mere fact that the
criminal operation was a local, retail business rather than an
interstate, international enterprise necessarily means a change in
complexity.
The James court, in noting that more complex conspiracies
may justify greater surveillance, added that "if this thesis is
taken to the extreme, the minimization requirement could be
emasculated.” 494 F.2d at 1020. Clearly, where the conspiracy
under investigation is not particularly sophisticated, where its
contours and members are increasingly well-defined, and where the
scope narrows, it is an extreme position to allow total intercep-
tion. °°
In relation to this factor, Scott II claimed that the use of
coded language or “jargon” justified greater surveillance. Assuming
that such a circumstance is appropriately considered® the record
80. See United States v. Sisca, 361 F.Supp. 735 (S.D.N.Y. 1973),
aff'd, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008 (1974)
where the court acknowledged the nature and extent of the criminal
narcotics enterprise being carried on and the great difficulties
confronted by the agents. It noted, inter alia, the large number
of participants in varying roles, the constantly expanding informa-
tion pertaining to the operation; and the guarded and coded language.
Nevertheless, it held that
the absence of any precautions to insure
minimization here, the number of such calls
intercepted and the lack of supervisory
techniques impel the conclusion that the mini-
mization requirements were not satisfactorily
observed. Id. at 745.
$2. The fact that many criminal conversations
are carried on in guarded language, code words,
Or jargon peculiar to the particular subculture
should not be invoked as justifying circumvention
of the minimization requirement It is reasonable
to assume that agents assigned to a specific case,
regardless of whether or not electronic surveillance
is involved ordinarily are familiar with the argot
of the group under investigation. Deliberately
evasive conversations pose more of a problem, but
not one that is insoluble. In many cases of cryptic
conversations, a literal interpretation of the
words exchanged would render them nonpertinent; the
tone and manner of discussion, however, would in-
dicate, even to the ear untrained in the art of
law enforcement, that the innocuous exchange is a
camouflage for criminal conversation. See, e.g,,
the two conversations transcribed in United States
v. Bynum, 360 F.Supp. 400, 412-13 n.10 (S.D.N.Y.),
aff'd, 485 F.2d 490 (2d Cir. 1973), petition fcr
sertfiled, 42 U.S.L.W. 3353 (U.S.Nov. 11, 1973)
(No. 73-856). Furthermore, a law enforcement
officer who has screened hundreds of calls between
criminal suspects should be in a good position to
- 46 -
completely contradicts this conclusion. The testimony demon-
Strates that, while code terms were used, the executing agents
were we..-versed in the language and were not handicapped by it. °
ii) Location and Operation Of The Wiretapped
Telephone.
James found that where "a telephone is used
exclusively to conduct illegal business and is located in a place
which serves no residential or [legitimate] business purpose...
less stringent minimization standards are both reasonable and
permitted by Title III." 494 F.2d at 1020. It is not disputed
that the telephone tapped in the instant case was located at a
residence; further, at least sixty per cent of the calls inter-
cepted were not related to narcotics. This is certainly a dif-
ferent situation from that in James where the telephone was used
entirely for conducting an illegal enterprise and the apartment
where it was located was used exclusively for the operation of the
(fn. 61 cont'd.)
sift the coded conversations from the innocuous
ones. If he reasonably and in good faith in-
tercepts an entire conversation that he believes
to be coded, the Government should not be penalized
for his judgmental error if, in retrospect, the
call turns out to be nonpertinent. On the other
hand, facially innocent calls must be presumed to
be nonpertinent, and the reasonableness of an
agent's belief that a conversation is in code
must be tested by objective standards. Cf. note 118
infra. If the rule were otherwise the Government
could point to the possibility of coded calls as
a rationale for interception of most, if not all,
nonpertinent calls. 26 Stanford Law Review 1411,
1419-1420 n. 42 (1974).
O32... [Agent Cooper] Well, there were numerous
code terms used. It appears that certain
individuals who becane identified as callers,
Or customers, or suppliers, or whatever, would
use their own terminology; not everyone used
the same type of terminology. Once this termi-
nology had been learned by us, that is, by
agents of the Bureau during the operation of
the wire intercept that had been completed not
too long before this one, so we were alert for
this type of language.
=» * *
Q. (Mr. Dreos - Daviage's trial counsel] Well, I'm
asking you, you did indicate that most of these
people were experienced, isn't that correct?
A. [Agent Cooper] They had at least a year's
experience and were aware of the code of
language that was being used.
ranscript of Proceedings of October 15, 1974, in United States v.
cott, et al., Crim. Nos. 1088-70 and 1089-70 (United States Distric
e District of Columbia) at 75-76, 170. A copy of the tra
cript is included in the original record in this Court.
ee
| - 47 «
able where the surveillance does not reveal patterns of innocent
sale of narcotics. Scott II found "that [the telephones] were not conversations, once those patterns develop minimization is required!
entitled to the same extent of protection as would be afforded in ; | See also United States v. Quintana, 508 F.2d at 874 (7th Cir.
the case of telephones used primarily for lawful purposes." 516 | 1975).
| F.2d at 759. Yet, the telephone here was primarily used for In the instant case, certain patterns did develop, yet the
:
| lawful purposes. The district court concluded that the telephone agents made no adjustments whatever of their policy of total
was "notthe type of ‘business’ phone as was used in James. 063 interception. The district court in its first suppression opinion
iii) Government Expectation Of The Contents Of The noted that
Calls. a ;
— there comes a time when an officer should
James stated that the Government's expectation reasonably assume that a particular conver-
—— Sation does not involve drugs. The conversa-
of the contents of the calls is a factor to be considered in deter- tions between Geneva and her mother serve as
the most blatant examples of this. 331 F.Supp.
mining the degree of minimization required. For instance, if an at 247-48.
agent knows the identities of those suspected or the times During the period of the wiretap, the agents intercepted in their
frequently used to transact "business", the agent can tailor entirety seven calls between Geneva Jenkins, a suspected con-
minimization efforts to avoid monitoring non-pertinent calls. spirator, and her mother. The conversations usually entailed
James noted that while “[t)hese considerations affect the initial several pages of transcript and afforded ample opportunity for
minimization tactics employed by the government,” 494 F.2d at 1020, appropriate adjustment by the agents. However, while the wiretap
: ; 65
they also are directed to the agents' minimization policy during revealed that the mother was not involved in the conspiracy, the
.
the wiretap, as categories of innocent communications develop. Id. i 64. mhe instant case presented a situation where categories of
. . nonpertinent calls were apparent at the outset of the surveillance.
at 1020-1021. ; The district court noted:
The court in Scott II adopted this notion that the degree ; For example, the intercept transcript at
page 47 shows a call from Riggs National
of minimization required may change in accordance with the infor- Bank to Thurmon seeking to verify a signature
on a check; at pages 148-150 shows a conversa-
mation revealed by the ongoing wiretap: tion between Geneva and another female about
ita 7 . af a possible job opening and Geneva's qualifications
Thus the only feasible approach to for it; and at page 280 a call to the Weather
minimization is the gradual development, Bureau and the response. It is common knowledge
during the execution of a particular wire- : that when one calls for a weather report he will
tap order, of categories of calls which get a tape recorded response. 331 F.Supp. at 247.
most likely will not produce irformation 65.
relevant to the investigatic: Once the Q. iMr. Palmer] And you never had any single piece
conclude that a particular t),e of conver- volved in any way with this illicit dealing in
sation is unrelated to the criminal inves- narcotic drugs, did you?
tigation, the minimization requirement A. [Agent Cooper] No, we did not.
obliges them to avoid intercepting future
conversations as soon as they can determine
that it falls within that category. Until
such categories become reasonably apparent,
however, interception of all calls will be
justified under the wiretap authorization.
516 F.2d at 754-755 (footnote omitted).
Transcript of Proceedings of April 16, 197l,in United States v.
cott, et al., Crim. No. 1088-70 and 1089-70 (United States Distric
ourt for the District of Columbia) at 325. A copy of the transcrist
is included in the original record in this Court.
Oat
Thus Scott II conceded that, while total interception is reason-
63+ Bindings of Fact, Conclusions of Law and Order, United States
v. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United States
District Court for the District of Columbia) at 3. See the Addendum
to this Brief, infra, at III.
— en ee ee
i - 50 -
- 49 -
: advance to minimize, the procedure to be employed was so cumber-
agents made no attempt to minimize these conversations. °® This . | Some as to be meaningless. It required the monitoring agents to
pattern had clearly developed by the time Miss Jenkins and her | continue interception of the suspected privileged call until
mother were talking for about the fourth or fifth time, yet the . | Assistant United States Attorney Harold J. Sullivan could be
agents, despite their admitted awareness of this "category,"°”
68
contacted. Only when Sullivan determined that the conversation
continued total interception. | Was between lawyer and client, discussing the case under investiga-
0 ee re eee eee
Other patterns were also evident. °? As early as the fifth
tion, would interception cease. It appears that surveillance would
day of the surveillance, it became apparent that the period of |continue unabated if the lawyer-client conversation related to
|
7
| | @ Matter not connected to the case under investigation. Lsuch
time from midnight to six a.m. was rarely used to conduct "busi-
ness" and that the agents were aware of this fact. still no ja procedure creates the precise evil that § 2518(5) is designed to
, , 7 ; ' : ,
consideration was given to reducing the operation of the wiretap. remedy, i.e., the interception of unrelated communications.
Despite the development of patterns of innocent communica-
ee eee
——_
Government's plan in connection with those calls perhaps best
Another pattern was lawyer-client communications. The |
' jtions and the agents’ awareness of those patterns, there was no
i
’
reveals how lightly it regarded the statutory minimization require~ adjustment whatsoever of the minimization policy. The entire
}
'
ment. The agents were instructed to cease monitoring these | jsurveillance entailed 100% interception. Such conduct is patently
conversations if they were determined to be privilesed. While unreasonable and demonstrates the Government's blatant disregard
this is the only instance where the agents developed a plan in | jof the minimization requirement.
iv) Judicial Supervision By The Authorizing Judge.
66.
Id. at 350, 353. | James states that "[t]he most striking feature
67-14, at 356. | of Title III is its reliance upon a judicial officer to supervise
68 scott II admits that had this pattern been more fully wiretap operations.” 494 F.2d at 102i20¢ the four criteria stated
developed, “the agents could no longer have had a reasonable
expectation of discovering material evidence and thus should have in James, the degree of judicial supervision is most often relied
acted to minimize the interceptions.” 516 F.2d at 758. To post- ' Cae
pone minimization on the merest chance that a conversation will pon by the courts in finding reasonable compliance with minimiza-
turn toapertinent subject would make the requirement meaningless.)
See United States v. King, 335 F.Supp. at 543. ftion provision. The effect of that supervision is to force agents
69.5 has already been noted that the interception revealed | pn a continuing basis to conform their actions to the law. See
a local retail operation instead of the anticipated interstate
importation and distribution enterprise. Even assuming the pro- United States v. Bynum, 360 F.Supp. at 410. Moreover, where the
priety of total interception with the expectation of the latter,
it follows that the subsequent discovery of a smaller conspiracy
would require a greater degree of minimization.
'0-nranscript of Proceedings of October 15, 1974, in United |
States v. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United
States District Court for the District of Columbia) at pp. 192-98.
A copy of the transcript is included in the original record in
this Court.
a eecenserint of Proceedings of April 16, 1971, in United States
vy. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United States
istrict Court for the District of Columbia) at 308. A copy of the
transcript is included in the original record in this Court.
72-0 fundamental importance of judicial scrutiny within the
itle III context is demonstrated by Congress’ expressed intent to
onform that statute to the principles enunciated in Katz v. United
tates. See supra, at p.16 n.12,In Katz, this Court found that the
iBurveillance Setated the fourth amendment despite its narrow limits).
e decision was based on the lack of a neutral predetermination by
judicial officer. Minimization cases, like Katz, emphasize the
ssential protection afforded by judicial supervision. See e.g.
nited States v. Bynum, 360 F. Supp. 400 (S.D.N.Y.), aff'd. F.2d
, vacated on other grounds, 417 U.S. 903 (1974).
ee ee
ee ee ee
| - $1 -
authorizing judge required and reviewed interim reports, ’° courts | os
- | ~ _ -
have been more willing to find a good faith attempt to minimize
|
‘ : | ; ri 6 . .
unnecessary interceptions. United States v. Clerkley, 556 F.2d at | complexity. “As a result Judge Smith was unable to provide the
718; United States v. Quintana, 508 F.2d at 875; United States v. | judicial supervision contemplated by James and similar cases.
Focarile, 340 F.Supp. at 1048. In summary the fact that every conversation is intercepted
Judicial supervision necessarily contemplates full awareness | does not necessarily render the surveillance violative of § 2518
and understanding by the judicial officer of the nature and scopeof (5). See United States v. Armocida, 515 F.2d at 42-43; United
and parties to the conspiracy. Absent complete knowledge of the States v. Bynum, 485 F.2¢ at 500. However, the analysis required
investigation, the protection afforded by judicial supervision by James of the factors relevant to assessing compliance with
is impossible. ’4 The trial court in Scott found: § 2518(5) clearly indicates that 100 percent interception was not
9. That according to the reports and justified in the instant case, and that the Government did not
classifications of the monitoring agents
that were ultimately submitted to Judge do all that it could to avoid unnecessary intrusion. Even if
Smith 40% of the intercepted calls were | |
narcotic related and 60% were not narcotic this Court findsthat the intentional flouting of the statutory
related. Judge Smith was never informed .
that the agents were making no,attempt to command by the executing agents was not unreasonable per se,
minimize. (emphasis supplied).
Daviage contends that total interception, under the circumstances,
The reports submitted to Judge Smith revealed no more , : ad
was a violation of the minimization requirement.
than the total number of communications per day and the number ;
III. BECAUSE THE GOVERNMENT MADE NO GOOD FAITH ATTEMPT TO ABIDE BY
of those that were narcotic related. The reports contained some See a ENTS aS CASE iS AN APPROPRIATE
ONE IN ICH TO INVOKE THE SANCTION OF COMPLETE SUPPRESSION.
highlights, “but none of them revealed that the agents were
; : In neither Scott I nor Scott II did the court of appeals
listening to and recording in full and indiscriminately all
find a breach of the minimization provision. Consequently, neither
conversations passing through the subject telephone." Scott, 331 en
— of those opinions had addressa@ito reach the remedy issue. Neverthe-
F.Supp. at 248. Further, it may well be that the Government's
less, the court in Scott II, in an extensive footnote, 516 F.2d at
failure to indicate in its report the actual scope of the criminal enterprise under
i 760 n. 19, suggests that had it reached the issue, it would have
investigation, resulted in judicial supervision geared to an investigation of |
ruled in favor of suppression of only the non-relevant eee:
The district court, however, held that the minimization
73-18 u.s.c. § 2518(6) authorizes the judge to require that
reports be submitted to him periodically showing progress and wisteetes Gemeated euaneecaion of the -
justifying the need for continued interception. PP entire intercept. The remedy
' issue is very much ali :
74-see united States v. Cox, 462 F.2d 1293 (8th Cir. 1972), ane live in the instant case, as well as a subject
cores, = os oo bb, United States v. Turner, 528 of controversy throughout federal and state jurisdictions. Notions
. . , . , . . .
73+ bindings of Fact, Conclusions of Law and Order, United Of judicial economy call for this Court to determine appropriate
States v. Scott, et al., Crim. Nos. 1088-70 and 1089-70 (United guidelines.
States District Court for the District of Columbia) at 4. See the
Addendum to this Brief, infra, at IV.
76.
It is unclear from the record whether Judge Smith was
ver made aware of the proper conspiracy under investigation. The
onspiracy revealed by the intercept, i.e., local, intra-Washington
ales, was of an admittedly lesser scope than that anticipated.
e affidavits for the original tap and for the extension,
mphasized the international, interstate conspiracy. See Affidavits
£ Glennon L. Cooper, dated January 24, 1970 and February 4, 1970,
espectively. Copies of the Affidavits are included in the original
‘ ecord in this Court.
@ §3 <«
A. The Statutory Suppression Mechanism.
The Government made no effort to adhere to the judicially
authorized wiretap order. For this reason, the entire intercept
should be suppressed. This result is supported by the statutory
exclusionary mechanism codified in 18 U.S.C. § 2515, as well as
by case law and the traditional rationale underlying the judicially
created exclusionary rule.
Section 2515 provides, in pertinent part: ’’”
Whenever any wire or oral communication
has been intercepted, no part of the
contents of such communication and no
evidence derived therefrom may be re-
ceived into evidence in any trial...if
the disclosure of that information
would be in violation of this chapter.
This section is the statutory remedy for the right provided in
5 2518(10) (a). 78 This latter section provides that an aggrieved
person’ ?may invoke the suppression sanction if "the interception
was not made in conformity with the order of authorization or
approval." Section 2518(10)(a) further states:°°
If the motion [to suppress] 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 language of § 2518(10) (a) indicates, therefore, that upon
proving that the monitoring agents failed to comport with the
provisions of the judicial order of approval, the aggrieved person
may invoke the explicit suppression remedy of § 2515. °
1) sone entire text of § 2515 is quoted supra, at p. 3.
18 - See S. Rep.No. 1097, supra, 106, reprinted in 1968 U.S.Code
Cong. & Ad. News at 2195.
19+ see discussion supra, at pp. 10-21.
80. one entire text of § 2518(10) (a) is quoted supra, at 4.
8l.
The legislative history highlights the close interplay
wees §§ 2515 and 2518(10) (a):
[Section 2515] must, of course, be read in light
of section 2518%(10) (a) discussed below, which
defines the class entitled to make a motion to
suppress. ie! as a
This provision [§ 2518(10) (a)] must be read in
connection with sections 2515 and 2517, discussed
above, which it limits. It provides the remedy
for the right created by section 2515.
S. Rep. No. 1097, supra, 96, 106, reprinted in 1968
U.S. Code Cong. & - News at 2185, "
- §4 <-
B. The Government's Suppression Remedy Is Inadequate.
Insofar as the Government's position can be gleaned from
32,
~
-
its briefs filed in prior stages of this litigation,
apparently urges that only the "innocent" conversations should be |
;
"suppressed". Its position presumably rests on an anology to the |
|
doctrine of the over-extended search in cases involving traditional
search and seizure of tangible items. See Marron v. United States, |
275 U.S. 192 (1927), and United States v. Thweatt, 483 F.2d 1226
(D.C.Cir. 1970). This argument states that evidence seized other
than that specified in the warrant itself should be suppressed,
but that evidence gained by that part of the search conducted
appropriately or evidence which falls within a recognized
exception, e.g., the “hot pursuit” exception, Warden, Maryland
Penitentiary v. Hayden, 387 U.S. 294 (1967), is nevertheless
admissible. This approach was taken in three cases involving
minimization violations. United States v. King, 335 F. Supp. 523,
543-44 (S.D.Cal. 1971) rev'd. on other grounds, 478 F.2d 494 (9th |
Cir. 1973), cert. denied, 417 U.S. 920 (1974); United States v.
Sisca, 361 F.Supp. 735, 746-47 (S.D.N.Y. 1973); and United States
v. Cox, 462 F.2d 1293 (8th Cir. 1973), cert. denied, 417 U.S. 918
(1974).
The Government's analogy between the search and seizure of
tangible items and the monitoring of a conversation overlooks
several critical distinctions. Electronic surveillance is a much
more intrusive mechanism than is a traditional search and seizure.
The latter involves the taking of an item with the resulting in-
vasion of privacy. This invasion, however, can be at least partially
corrected by return of the items wrongfully seized. The seizure of
a conversation, however, is irrevocable. As the court in United
B2 cee, e.g., the Government's Brief in Scott I (Nos. 71-1702
and 71-1703, United States Court of Appeals for the District of
Columbia); and the Government's Motion for Summary Reversal in Scot
I (Nos. 70-2097 and 70-2098, United States Court of Appeals for @
strict of Columbia) (by order of March 5, 1975, the Court of
peals directed that the motion be treated as the Government's
rief).
- §§ «
States v. Focarile, 340 F. Supp. at 1047 noted:
A conversation once seized can never
truly be given back as can a physical
object. The right of privacy protected
by the Fourth Amendment has been more
invaded where a conversation which can
never be returned has been seized....
This distinction was also recognized in United States v. King,
335 F. Supp. at 544.
It is possible that the great delicacy
which inheres in a wiretap situation sets
it so far apart from other types of searches
and seizures that error as to the conduct
of a part of the surveillance renders the
entire interception invalid.
Moreover,
in a typical search, the authorities do not seize
“innocent” items.
Whether the executing officers stay within the
particulars of a warrant or not, only inculpatory items are
taken. The same cannot be said of electronic surveillance.
Indeed, at its core, a wiretap constitutes a complete survey and
a total intrusion into the target individual's life. Whereas a
typical search warrant specifically defines the area to be
searched and the items to be seized, a wiretap order, by its very
nature, permits seizure of everything. °?
In fact, the whole point
of minimization is to prevent a general inquiry into a person's
life and to inject some particularity into an inherently intrusive
mechanism. The failure to adhere to the minimization requirement
does not go to any single interception; rather it goes to the
conduct of the monitoring agents over the entire span of the wire-
tap. If the agents fail to minimize, then it is the complete life
of the wiretap that is infected.
Furthermore, the remedy of exclusion of the improperly seized
items, while meaningful in a traditional search case, is no remedy
at all in a wiretap case.
In the former situation, the exclusion
53+ onis is partigularly true in view of § 2517(5) which per-
mits the executing agents to receive after-the-fact judicial
orders to justify the monitoring and recording of inculpatory
conversations unrelated to the purpose of the original wiretap
lorder.
‘biccities Ae
" MO ES
|
- 56 -
of the improperly seized items punishes the over-reaching law
enforcement officer by denying him the use of evidence that tends
to establish the defendant's guilt. In the wiretap situation,
however, the evidence unlawfully seized is non-inculpatory or, at
a minimum, wholly irrelevant to the purpose of the wiretap. Thus,
the remedy suggested by the Government is no remedy at all,
since it permits the use of inculpatory material while "conceding"
that the material gained as a direct result of an unlawful inva-
sion of privacy should be “suppressed”. The Government conveniently
overlooks the fact that no one would ever seek to introduce the
innocent calls; indeed their introduction would be objected to
on relevancy grounds. The district court correctly noted that
such an approach to exclusion would gut § 2518(5):
If this Court were to allow the Government
agents to indiscriminately intercept every
conversation made and to continue monitoring
such calls when it becomes clear that they
are not related to the “authorized objectives”
of the wiretap and in violation of the limiting
provisions of the order such order would become
meaningless verbiage and the protections to the
right of privacy outlined in Berger and Katz
would be illusory. 331 F.Supp. at 248.
C. The Policy Underlying 18 U.S.C. § 2515 Warrants Suppres-
sion Of The Entire intercept.
Daviage urges this Court to suppress the entire wiretap
evidence. Such a remedy for a minimization violation does not
require any extension of existing exclusionary principles, but
does recognize the unique nature of electronic surveillance.
Unlike the Government's position, which would permit virtually
unlimited surveillance with “suppression” of items totally irrele-
vant, this remedy is consistent with the legislative mandate
of protecting privacy found in Title III.
The legislative history makes abundantly clear the crucial
role of the evidentiary sanctions in insuring that the privacy
of individuals is respected. After setting out the specific
provisions of § 2515, the Senate Committee report states:
It largely reflects existing law. It applies
to suppress evidence directly (Nardone v.
United States, 302 U.S. 379 (19 or in-
rectly tained in violation of this chapter.
(Nardone v. United States, 308 U.S. 338 (1939)).
— ee
ee
ee ee ee + _ —_
e $7 <-
There is, however, no intention to change
the attenuation rule. See Nardone v.
United States, 127 F.2d 52 , certiorari
denied, 316 U.S. 698 (1942); Wong Sun v.
United States, 371 U.S. 471 (T86s7 Nor
generally to press the scope of the sup-
pression role beyond present search and
seizure law. See Walder v. United States,
347 U.S. 62 (1954). But it does apply
across the board in both Federal and
State proceeding. Compare Schwartz v.
Texas, 344 U.S. 199 (1952). And it is not
limited to criminal proceedings. Such a
suppression rule is necessary and proper
to protect privacy. Compare Adams v.
Maryland, 347 U.S. 179 (1954); Mapp v.
Ohio, 367 U.S. 643 (1969). The provision
thus forms an integral part of the system
of limitations designed to protect
privacy. Along with the criminal and
civil remedies, it should serve to guarantee
that the standards of the new chapter
will sharply curtail the unlawful inter-
ception of wire and oral communications.
S. Rep. No. 1097, supra,96, reprinted in
1968 U.S. Code Cong. & Ad. News at
An examination of the cases relied on in the committee
report confirms that the drafters of § 2515 intended to incor-
porate into the statute principles generally supportive of the
suppression position urged by Daviage. The two Nardone cases
are cited for the basic proposition that illegally seized
evidence is inadmissible, Nardone v. United States, 302 U.S. 379,
(1937), as well as evidence obtained solely by information derived
from illegal seizure, Nardone v. United States, 308 U.S. 338
(1939). The “attenuation rule” for which Nardone v. United
States, i27 F.2d 521 (2dCinjcert. denied, 316 U.S. 698 (1942), and
Wong Sun v. United States, 371 U.S. 471 (1963), are cited bears
solely on the extent to which indirect evidence gained from
information received from an illegal search or seizure can be used
and is not an issue in the instant case. The report further cites
Walder v. United States, 347 U.S. 62 (1954) for the proposition
that the scope of suppression called for in § 2515 is not to
exceed present limits. Walder permits illegally seized information
to be used for impeachment purpeses at trial - a proposition
clearly irrelevant to the matter now before the Court. Schwartz v.
Texas, 344 U.S. 199 (1952), Adams v. Maryland, 347 U.S. 179 (1954),
and Mapp v. Ohio, 367 U.S. 643 (1961), are all cited to support
wide ranging scope intended for this rule. That is, the
=— Ss
- 58 -
7”
exclusionary principle is to be applied in virtually all kinds of
judicial or quasi-judicial proceedings in both state and federal
jurisdictions.
In Gelbard v. United States, 408 U.S. 41 (1972), this Court
stressed the importance that Congress attributed to the § 2515
84
statutory sanction. The Court noted that the fundamental policy
of Title III was to limit permissible electronic surveillance in
a manner designed to afford great protection for privacy. Id.at
50. The Court went on tec say that § 2515 is crucial to this
protection:
The unequivocal language of § 2515 ex-
presses the fundamental policy adopted
by Congress on the subject of wire-
tapping and electronic surveillance.
As the congressional findings for
Title III make plain, that policy is
strictly to limit the employment of
those techniques of acquiring infor-
mation....
+ * =
Section 2515 is thus central to the
legislative scheme. Its importance
as a protection for "the victim of
an unlawful invasion of privacy”
could not be more clear. The purpose
of § 2515 and Title III as a whole
would be subverted were the plain
command of § 2515 ignored.... 408 U.S.
at 49-51 (footnote omitted).
As well as implementing and protecting the privacy safe-
guards, § 2515 serves the traditional policies underlying the
judicially fashioned exclusionary rule. As originally set forth
in Weeks v. United States, 232 U.S. 383 (1914), the judicially
established exclusionary rule prohibits the use of otherwise com-
petent evidence when that evidence was seized in violation of the
fourth amendment. The purpose of this policy is primarily to deter
unlawful police conduct, Mapp v. Ohio, supra, and further, to
insure that the courts "do not become partners to illegal conduct
+++." Gelbard, 408 U.S. at 51.
Bs one petitioners in Gelbard had refused to answer questions
based upon irtercepted tele »hone conversations to which they had been
rties until they had c<eceived an opportunity to challenge the
egality of the wiretap. As a result of the refusal to testify, the
titioners had been cited for civil contempt. The Court held that
itnesses were entitied to invoke the prohibition of § 2515 as a
efense to contempt charges.
- §9 -
The instant case is one in which suppression of the entire
intercept serves the policies underlying § 2515 particularly
| ell. The minimization provision of § 2518(5) would be rendered
| eaningless if the agents executing a wiretap were permitted to
| urposely disregard that directive and conduct a wholesale
jBearch. Moreover, were the Government to benefit from such wire-
| apping conduct, there would be no incentive for the monitoring
| gents ever to abide by the minimization requirement. Any
eterrent effect of § 2515 would be neutralized. Finally, per-
litting the use in court of wiretap evidence seized in flagrant
isregard of the wiretap order would constitute judicial approval
£ such wiretarping methods.
D. The Minimization Requirement Of 18 U.S.C. § 2518(5) Plays
A Central Role In Enforcing The Privacy Requirements Of
Title III.
Although this Court has not yet construed the minimization
rag of Title III, its decisions interpreting other provi-
ions of that statute strengthen Daviage's contention that minimiza-
tion is central to the statutory scheme and should be made
meaningful through invocation of the remedy of total suppression.
Thus, in United States v. Giordano, 416 U.S. 505 (1974), this
Pourt was confronted with an argument similar to the one now
urged by the Government. In Giordano, the Government violated § 2516
(1) which vequired the Attorney General or a specially designated
ssistant Attorney General to authorize all wiretaps. Then Attorney
neral Mitchell had delegated this responsibility to his Executive
sistant. The government admitted violating § 2516(1) but argued
at the violation was only technical and did not require suppres-
ion of the interception. This Court held that, in attempting
to balance law enforcement needs against the intrusiveness of
lectronic surveillance, Congress specifically intended only
enior Justice Department officials to have authorization power.
ence, departure from the statutory scheme constituted too great
mn encroachment on “the Congressional intention to limit the use
mae in Giordano. It is , in fact, crucial in preventing a
£ intercept procedures...." 416 U.S. at 527. In reaching this
ecision to suppress the illegally seized wiretap evidence Mr. |
- 60 -
Justice White stated:
We think Congress intended to require
suppression where there is failure to
satisfy any of those statutory require-
ments that directly and substantially
implement the Congressional intention
to limit the use of intercept procedures
to those situations clearly calling
for the employment of this extra- 85
ordinary investigative device. Id. at 527.
United States v. Donovan, 429 U.S. 413 (1977) is the C .urt's
st recent statement interpreting Title III's suppression anual
uilding on Giordano, the Court stated that suppression of the
ntire intercept is appropriate where the Government violates a
ection of Title III that plays "a ‘central role' in the statutory
ramework." Id. at 434.
Daviage contends that the minimization requirement plays as
bentral a role in the statutory scheme as did the provision dis-
iretap from becoming a general search. In Berger v. New York,
as this Court struck down a New York electronic surveillance
law, in part, because that statute permitted
a long and continuous (24 hour a day)
period [during which] the conversations
of any and all persons coming into the
area covered by the device will be seized
indiscriminately and without regard to
their connection to the crime under inves-
tigation. 388 U.S. at 59.
85.
Giordano's companion case, United States v. Chavez, 416
U.S. 562 (1974), held that where the proper Justice Department
fficial authorized the intercept, but that official was later mis-
dentified as one without statutory authorization power, the error
as not significant enough to warrant suppression. The Court
etermined that the Chavez violation was merely technical, and not
every failure to comply fully with any
requirement provided in Title III would render
the interception of wire or oral communication
"unlawful." 416 U.S. at 574-75.
86-75 Donovan, the Government violated Title III by failing
to inform the approving judge of 1) all of the principal targets of
e wiretap as required by § 2518(1) (b) (iv); and 2) all people
ose conversations were intercepted for the purpose of sending the
st-wiretap notice as required by § 2518(8)(d). The Court held
at both of these omissions violated Title III, but that the viola-~
ions were not significant enough to warrant suppression. The Court
uggested, however, that had the violations been willful or deliberaft
very different result might well have followed. Id. at 436, n. 23.
e also United States v. DiGirlomo, 550 F.2d 404 (8th Cir. 1977).
the limits explicated in Berger and Katz. See pj6n12 , supra.
The minimization provision goes to the core of Title III insofar
° 61 «
Recognizing both the particular intrusiveness of electronic
surveillance and its potential for extreme invasion of privacy,
Congress attempted to limit the extent of permissible wiretapping.
Indeed, Congress explicitly sought to make Title III conform to
s it prevents blanket searches or seizures and attempts to imple-
ent the particularity requirement of the fourth amendment. See
Rep. No. 1097, 103, reprinted in 1968 U.S. Code Cong. & Ad. News
t 2192. Were it not for the minimization requirement, law
nforcement officials would be permitted to conduct twenty-four
our searches and seizures of private conversations. No one would
rgue that the Government could seek all papers which a person
fli write for the next thirty days. Such a request would
ndoubtedly be denied as constituting a general warrant. Camara v.
unicipal Court, 387 U.S. 523 (1967). It is, however, even more
xtreme for the Government to seize all conversations for a future
eriod. Title III attempts to carefully balance the
ompeting interests of efficient law enforcement and preservation
f individual privacy. The minimization provision is central in
reventing the scales from tipping too far on the side of electronic
ntrusion at the expense of personal privacy.
E. Failure To Comply With The Minimization Provision Of
18 U.S.C. § 351815) Requires Suppression Of The Entire
Intercept.
Although minimization issues have been subjected to con-
siderable scrutiny by the courts, few opinions have dealt exten-
sively with the issue of remedy. Perhaps the most detailed dis-
cussion of the appropriate remedy for a failure to mininize is
found in United States v. Focarile® supra, in which the United
States District Court for the District of Maryland analyzed the two
. *“Focarile is the district court case which, on appeal, be-
came United States v. Giordano, supra. At the district court level,
the issue of improper Justice Department authorization had not yet
merged. Once that issue did appear, however, it pre-empted the
inimization issue.
ee eee a oe
- 62 -
basic kinds of minimization violation. It described a Type I
violation as one in which government agents - as in the instant
case - consciously disregard the minimization provision. A Type
II violation, on the other hand, arises when the agents attempt to
minimize but their efforts are unreasonably inadequate. 340 F.
Supp. at 1046.° The court went on to say, however, that regardles
of the type of minimization violation, the appropriate remedy was
lsuppression of the entire intercepted communication, It rested
this analysis squarely on the rationale of effective enforcement
pf the minimization requirement:
In either type of violation of the
minimization requirement, a question
necessarily arises as to the extent of
the prophyloctic remedies necessary to
give the requirement meaning. In this
Court's opinion the minimization require-
ment of § 2518(5) would be illusory if it
were enforced on an item-by-item basis by
means of suppressing unauthorized seizures
at trial after the interception is a fait
accompli. Id.
Daviage urges that this Court adopt the reasoning of Focarile, and
rule that either a Type I or Type II violation of the minimization
requirement results in the suppression of the entire intercept.
Because the minimization provision plays such a significant role
in protecting individuals from unreasonably broad electronic
surveillance, logic and fairness require giving full effect to
that safeguard.
BB. one specific facts of Focarile presented the possibility
f a Type II violation, i.e. where the agents' efforts at minimiza-
tion were unreasonably inadequate. The Court went on to rule,
however, that there was a good faith effort to comply coupled with
actual compliance and hence, no violation.
-_--— |
e 63 «
The Focarile position presently represents the minority
viewpoint, with most courts agreeing to suppress only when a Type
I violation has occurred. Nevertheless, should this Court adopt
same - suppression of all the wiretap evidence. The majority
89
position is a two-step process, ’turning on the same distinction
drawn by Focarile. If the violation of she minimization provision
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the majority position, the result in the instent case would be the |
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in the order of approval is conscious and deliberate, as in the
resent case, then total suppression of the entire intercept is |
ppropriate. If, however, the violation is one in which the
gents attempted to minimize but inadequately implemented those
fforts, then suppression is limited to those interceptions beyond
the scope of the wiretap order. An examination of several cases
which have applied this two-step process in differing factual
rontexts is instructive.
In United States v. George, 405 F.2d 772 (€th Cir. 1972), the
ourt faced a factual situation nearly identical to the instant one.|
fhe monitoring agents were not supplied with a copy of the wiretap
protective limitations contained in the order were entirely cizcum-|
order. Without the order or any other special instructions, the
vented and as a result, the agents intercepted conversations out- |
side the permissible scope of the authorization. The court found
that the surveillance had been conducted in "utter disrecard of the
provisions of the order of the District Court.” Id. at 774. In |
89.
See United States v. Lanza, 349 F.Supp. 929 (M.D.Pla. 1972);
nited States v. Leta, 332 F. Supp. 1357 (M.D.Pa. 1971), rev'd on
rounds sub nom, United States v. Cerasco, 467 F.2d 647 '
; United States v. King, supra; United States v. |
rreri, 363 F. Supp. 430 (D.Md. S73, nited States v. Tortorello,
480 F.2d 764 (2nd Cir.), cert. denied, Sif U.S. 866 (1573);
United States v. Turner, 5 ; (9th Cir.), cert. denied,
423 U.S. 996 (1975); United States v. Principie, 531 F.2d 1132 ‘2nd
Cir. 1976), cert. denied,430 U.S. 905 (197°); Cf. United States v.
Cox, 462 F.2d 1293 (eth Cir. 1972), cert. denied, 417, U.S.
74); United States v. Sisca, 361 F. Supp.
aff'd, 50 ;
90-onis two-step approach to suppression closely parallels
(S.D.N.¥. 1972),
(2nd Cir.), cert. denied, 419 U.S. 1008 (1974).
nd complements the two-step method of deciding the actual merits of
minimization claim. See supra, at p. 30. )
'
i
- 64 -
suppressing the entire intercept, the court stated:
If the agents of the Government are not
required to comply with the limitations
contained in an order authorizing inter-
ception of telephone calls then the purpose
of such order would be defeated.... Id. at 775.
In People v. Brenes, 42 N.Y¥.2d 41, 396 N.Y.S.2d 629 (1977),
the Court of Appeals of New York articulated the two-step approach
in formulating a remedy for a minimization violation under New
91 In Brenes, as in the instant matter, every
York's wiretap law.
conversation totalling 743 in all, was recorded over the course of
twenty days. There were no advance procedures worked out for
minimizing and no attempt to minimize was made. The court declined
state a "blanket" suppression rule, People v. Brenes, supra,at
35, but went on to say that
a distinction must be drawn between, on
the one hand, cases where, as here, the
order is executed as if in defiance of
the existence of statutory and decisional
minimization requirements and, on the other,
cases where in retrospect it appears that
the minimization efforts have merely fallen
short. While an unlimited intrusion requires
a remedy as broad as the unlawful act, a limited
One may not. Since, in our view, the present
case falis within the first category, total
suppression was warranted. Id. at 635 (emphasis
supplied). 2
In several other cases where the courts found substantial
compliance and therefore did not suppress, they nevertheless
made clear that suppression would have been appropriate if lack
of good faith had been demonstrated, For example, in United States
. Lanza, 349 F. Supp. 929 (M.D.Fla. 1972) the court found that of
the 4,098 calls intercepted, only 1,066 (26%) constituted
Si.
See supra, at p. 34 n.4l.
92.
See also People v. Holder, 69 Misc. 2d 863, 331 N.Y.S.2d
7 (Sup. Ct. of Nassau Cty. 1972) holding that failure by the
mitoring agents even to attempt "lip service” compliance with
e minimization provision requires suppression of the entire
tercept.
——
- 65 <-
93
recorded non-pertinent calls.” The court decided that these
statistics, combined with the fact that the agents, in fact, made
reasonable efforts to minimize, 349 F. Supp. at 932, indicated
that there had been no minimization violation. In reaching its
decision, the court contrasted the facts in Lanza with those in the
instant case:
The statute does not prohibit the inter-
ception of non-pertinent calls; rather
it requires the agents to conduct the
wiretap so as to minimize such inter-
ception. When, as in Scott, this mandate
is so blatantly ignored, the proper
result is the suppression of the entire
intercept. On the other hand, where non-
pertinent calls are intercepted despite
the agents’ effort at minimization, only
the unauthorized interceptions should be
suppressed. Id. at 932.
See also United States v. Curreri, 363 F.Supp. at 437 ("If the
government totall; ignores the minimization directive, total
suppression may well be in order."); United States v. Turner, 528
P23 at 156 ("In a case where it is clear that the mini
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