# Amicus Brief — Scott v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2123%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1978 - **Citation:** 436 U.S. 128 ## Text eal... 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-_—-- . . . . 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) « 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= 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 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