Petition — Dalia v. United States

Supreme Court, U. &

FILE UD

In Th

| — JUN 2 1978

Supreme Court of the Hutitada Staten. c.em

@7-1722 }

October Term, 1977

No.

LAWRENCE DALIA,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

LOUIS A. RUPRECHT

Attorney for Petitioner

1180 Raymond Boulevard

Newark, New Jersey 07102

(201) 624-6112

964 LUTZ APPELLATE PRINTERS, INC.

Law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288

TABLE OF CONTENTS

Page

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GET A Ae ee Ta. NR ee a

Reasons for Granting the Writ:

The decision of the Court of Appeals for the Third

Circuit is in direct conflict with holdings of the

courts of appeals for two circuits which have

required prior authorization for a _ surreptitious

forced entry to install or remove electronic

CUED GID, onc cc ccnsatccccccscessess

The decision be!ow raises an important issue with

respect to the supervisory powers of the courts in

administering Title lil and a question of first

impression regarding statutory interpretation of an

important aspect of Title II]. ...............4..

The decision below raises an important question of

first impression regarding the role of an appellate

court in reviewing the alleged excessiveness of a

SENTENCE. ..ccccccccccccseccsesccssesesececcees

RR REP Ee Oe Pe ee ee ee

12

TABLE OF CITATIONS

Page

Cases Cited:

Application of the United States, 563 F.2d 637 (4th Cir.

DUE cuckdcasccnebaedascendeccdeanaceneuyaeeen 8,9, 10

Government of Virgin Islands v. Venzen, 424 F.2d 521 (3d

Re MED kc ctiucdunceeessadacunsescepslesseunuedeeed 16

Lopez v. United States, 373 U.S. 427 (1963) ......-. ee eee 13

Silverman v. United States, 365 U.S. 505 (1961) ........... 13

United States v. Agrusa, 54! F.2d 690 (8th Cir. 1976), cert.

Gonied, GIP UB. IGG CISTI) oc ccccccssvescesvses 9, 10, 14

United States v. Dalia, 426 F. Supp. 862 (D.N.J. i977) ..... 2

United States v. Finazzo, 429 F. Supp. 803 (E.D. Mich.

DDD tied (aw auwetsaeds o66%eicicetnncinbewetkeeus il

United States v. Ford, 414 F. Supp. 879 (D.D.C. 1976), 553

Pe Oe GE GE URED ccceedecdecqocusveet 7, 8, 10, 11

United States v. Lee, 532 F.2d 911 (3d Cir.), cert. denied,

ee re coal Coc: ce or ae wea ee duel 16

United States v. United States District Court, 407 U.S.

NRT Es I Ay ati RD Ma Uae My SP 9 a go 14

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Er ere ew

i

Contents

Page

Vigorito v. United States, 46 L.W. 3704 (May 15, 1978) .... 10

Woosley v. United States, 478 F.2d 139 (8th Cir. 1973) ..... 16

Statutes Cited:

Pe Sa UE Rie syesevadedwaséccucédcsnednedcens 2

OD Den Bre Oe OE, | hook besa cievciccscuess 2, 8, 11, 12, 14

United States Constitution Cited:

FUE TE. Sa Wo hivhsn Seeda cediiccceseswens 4, 5, 8, 12

APPENDIX

Decision of the United States Court of Appeals For the

Third Circuit Dated May 3, 1978 ............ccceeeee la

SEE Te TE Bi: Fe hse vise ce cede wesevesdovccws 8a

Portion of Decision of the United States District Court For

the District of New Jersey Dated January 11, 1977 Re-

lating to Surveptitious Entry ......cccccccccccccccces 10a

mee

Supreme Court of the United States

+

October Term, 1977

No.

LAWRENCE DALIA,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

The petitioner, Lawrence Dalia, respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit entered in this

proceeding on May 3, 1978.

OPINIONS BELOW

The Court of Appeals for the Third Circuit filed an opinion

on May 3, 1978. That opinion and the opinion of the United

States District Court for the District of New Jersey dated

2

January !1, 1977 appear in the appendix hereto. The trial court

opinion is officially reported as United States v. Dalia, 426 F.

Supp. 862.

JURISDICTION

The judgment of the Court of Appeals for the Third Circuit

was entered on May 3, 1978. This petition for a writ of certiorari

has been filed within thirty days of the entry of that judgment.

The jurisdiction of the United States Supreme Court is conterred

by 28 U.S.C. §1254(1).

QUESTIONS PRESENTED ;

1. May Government agents commit an otherwise illegal

breaking and entry in order to install, maintain and remove

electronic listening devices when lawful authority to intercept

oral communications has been granted pursuant to Title III' but

when no authority to commit a breaking and entry has been

sought or obtained and the supervising court has not been

advised of the manner of the proposed entry or installation?

2. May a sentence imposed within the statutory limits be

the subject of appellate review?

STATEMENT OF FACTS

The petitioner Lawrence Dalia was indicted for his alleged

role in transporting, receiving and possessing stolen goods. He

was found guilty on two counts of a five-count indictment and

sentenced to serve two concurrent five-year terms. A co-

defendant, Daniel Kizzo, who was alleged to have been a

hijacker of the interstate shipment pleaded guilty prior to the

commencement of the trial.

1. “Title III” refers to Title II] of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §2510 ef. seq.

a

a

3

Prior to the indictment of Lawrence Dalia and Daniel

Rizzo, five other persons had been indicted for their respective

roles in the hijacking of the interstate shipment and their

transporting, receiving and possessing the stolen goods. These

five individuals all pleaded guilty and were sentenccu before

return of the indictment of petitioner Dalia.

Pursuant to a request by the United States Department of

Justice on March 14, 1973, Judge Frederick B. Lacey granted

authorization to intercept telephone communications from two

telephones located at petitioner's place of business in Linden,

New Jersey. The authorization for the wiretap extended for

twenty days. Upon expiration of the initial order, the United

States Department of Justice applied for a new order

authorizing continued wire interception of the two business

telephones of the petitioner. In addition, the application sought

permission to intercept oral communications of petitioner Dalia

occurring within his private business office. On April 5, 1973,

Judge Lacey authorized interception of oral communciations

taking place within the petitioner’s office. No reference was

made in the application or the order with respect to the manner

in which the oral communications would be intercepted nor was

the court informed that a break-in was contemplated (Tr1.9-21

to 1.10-16).

On the night of the issuance of the order and extending into

the early morning hours of the next day three special agents of

the Federal Bureau of Investigation broke into the office of

petitioner Dalia. They received no instructions from the court or

any attorneys from the Department of Justice with respect to

their proposed activities while on the premises of the petitioner

(Appellate Appendix, pp. 106, 112).2 After searching the entire

building for “safety” reasons (A107) the agents proceeded to

install a listening device in the ceiling of the petitioner’s office

2. Reference to the Appellate Appendix filed with petitioner’s appellate

brief is hereinafter referred to a “A”.

4

(All). This listening device enabled the agents to overhear and

record all conversations taking place in the petitioner's office for

twenty days. At the conclusion of that order a third application

was made to Judge Lacey to continue the interception of

telephone communications on the business phones and the

interception of oral communciations in the petitioner's office.

Again, no mention was made in the application or order with

respect to the manner of interception of oral communications at

the inception of this third twenty-day period. No informal advice

was given to the court as to what had occurred when the device

was installed nor was any informal advice about any

contemplated break-in disclosed (A114).

Without any prior notification to the court, two agents re-

entered petitioner's office on May 16, 1973 and removed the

electronic equipment. On both occasions the break-in was

accomplished by entering through a window during the late

night or early morning hours. The agents were in the petitioner’s

premises for two or three hours on the first occasion (Al 11) and

between one-half to an hour the second time (A112). No reports

or records were made by the agents with respect to their entry

nor was the court advised of what had occurred after the

termination of the third order or after the second break-in

(A106, 114; Trl.9).

A timely motion to suppress the results of the electronic

surveillance was made on several grounds. One basis was that

the unauthorized breaking and entry was a violation of the

Fourth Amendment of the United States Constitution. A second

basis for suppression was a contention of the petitioner that the

Government had greatly exaggerated the number of

incriminatory conversations being overheard in the five day

Progress Reports submitted to the supervising judge in order to

justify continuation of the eavesdropping and wiretapping. The

recorded office conversations and intercepted telephone

conversations resulted in tape recording more than 1,500 hours

of reels. Over 5,000 telephone conversations were recorded and

5

more than 1,150 separately designated conversations were

overheard and recorded from petitioner's private office.

Although the motion to suppress was made prior to trial, an

evidentiary hearing was not entertained until the conclusion of

the trial. It resulted in an opinion of the court dated January 11,

1977 denying the motion. The court then sentenced petitioner to

a maximum five-year term sentence on each of the two counts

upon which he was convicted; the term sentences to run

concurrently. The petitioner had no prior criminal record. Of the

six individuals who had previously been charged with offenses

arising out of the criminal transaction for which petitioner was

convicted, only the petitioner Dalia and another named Joseph

Higgins played no role in the actual hijacking. With respect to

Higgins, he was alleged to have stored the stolen goods on his

property after the hijacking. The petitioner Dalia’s role allegedly

was to refer other convicted defendants to Joseph Higgins in

return for which Higgins presumably would have forwarded a

sum of money to petitioner. Upon sentencing Joseph Higgins for

his role in the criminal transaction, Judge Lacey had imposed a

three-year probationary sentence. As noted, Judge Lacey

imposed a five-year term sentence upon petitioner Dalia. Only

Dalia had chosen to contest the charges.

The United States Court of Appeals for the Third Circuit

affirmed the conviction and sentencing of petitioner Dalia in an

opinion filed May 3, 1978. No discussion was given to

petitioner’s argument that the sentence imposed was an abuse of

discretion remediable upon appeal other than to recognize that

the point had been raised. The opinion of the Court of Appeals

dealt primarily with petitioner’s contention that a breaking and

entry to install a listening device without first obtaining judicial

approval is a violation of the Fourth Amendment. After

acknowledging the fact that other circuits agreed with

petitioner’s contentions, the Court of Appeals stated:

6

“We accept Judge Lacey’s finding that a

surreptitious entry was the most effective means

for installing the interception device as well as his

finding that the installation was based upon

probable cause and executed in a reasonable

fas ion.*

However. the Court of Appeals was not willing to reject

unequivocally petitioner's contention. The Court of Appeals

added:

“in rejecting appellant’s contention in this case

that separate authorization was required for the

forcible surreptitious entry, we do not adopt a

rule that specific authorization is never required.

In the future, the more prudent or preferable

approach for Government agents would be to

include a statement regarding the need of a

surreptitious entry in a _ request for the

interception of oral communications when a

break-in is contemplated. This burden is minimal

in light of the Fourth Amendment considerations

that could be later raised.”

in a footnote, the Court of Appeals seemed to invite the United

States Supreme Court to clarify the issue with the following

observation:

“When the request to intercept oral

communications v as made in 1973 in the instant

case, the Denart.nent of Justice was not on notice

3. A rewew of the trial judge's opinion indicates the court made no

fuudumg pror to the break-in that the particular installation was based upon a

showing of probable cause or that the installation was performed in a

reasonable fashion. Any such “finding” was made almost four years after the

sreak-m. No evidence was ever produced on the motion to suppress to give

factual support to the conclusion that the intrusion was the only feasible

manner of accomplishing the eavesdropping.

;

of any conflict among the Circuits. Since that

time, absent a Supreme Court decision, there has

developed an irreconcilable conflict among the

various Courts of Appcais.”

REASONS FOR GRANTING THE WRIT

I.

The decision of the Court of Appeals for the Third Circuit

is in direct conflict with holdings of the courts of appeals for

two circuits which have required prior authorization for a

surreptitious forced entry to install or remove electronic

eavesdropping devices.

The Court of Appeals for the Third Circuit in deciding the

case at bar conceded that on the issue presented, “there has

developed an irreconcilable conflict among the various courts of

appeals.” Within the last two years, the issue of surreptitious

entries to effectuate electronic eavesdropping has been the

subject of a decision by five courts of appeals. In two circuits,

the District of Columbia ana the Fourth Circuit, the petitioner’s

motion to suppress most certainly would have been granted and

affirmed on appeal. In two other circuits, the Second and now

the ‘Third, the courts of appeals have held that prior court

authorization to break and enter to install electronic listening

devices need not exist once a valid authorization to intercept

oral communications has been granted. It is probable that the

Court of Appeals for the Eighth Circuit would require prior

authorization before allowing a break and entry to install a

listening device.

In United States v. Ford, 553 F. 2d 146 (D.C. Cir. 1977),

the court was faced with electronic eavesdropping which had

been accomplished by installing a listening device by way of a

ruse. Pretending to evacuate a building because of a bomb

threat, Government agents used the time to install electronic

listening devices. They had previously discussed the matter with

the court supervising the Title III application. The court had

specifically permitted the Government agents to

“Enter and re-enter...for the purpose of

installing, maintaining and removing the

electronic eavesdropping devices. Entry and re-

entry may be accomplished in any manner,

including, but not limited to, breaking and

entering or other surreptitious entry or entry and

re-entry by ruse and stratagem.” United States v.

Ford, 553 F. 2d 146, 149 (D.C. Cir. 1977).

Both the District Judge as well as the Court of Appeals held

that this authorization was constitutionally overbroad. The

District Court Judge in Ford held that the warrant gave the

police “virtually unrestrained discretion in installing a

surreptitious listening device.” United States v. Ford, 414 F.

Supp. 879 (D.D.C. 1976). The Court of Appeals fully concurred

with the District Court's analysis, United States v. Ford, supra,

at pp. 154-55, 165-70, and held that a break-in must be subjected

to independent Fourth Amendment scrutiny by a neutral and

detached magistrate upon oath or affirmation. The Court of

Appeals in Ford held that, “When police seek to invade,

surreptitiously and without consent, a protected premises to

install, maintain, or remove electronic surrveillance devices,

prior judicial authorization in the form of a valid warrant

authorizing that invasion must be obtained.” 553 F. 2d at !65.

In Application of the United States, 563 F. 2d 637 (4 Cir.

1977), the Government had sought a specific authorization to

make surreptitious entry into the premises of gambling suspects.

The District Judge denied the order holding that while sufficient

cause existed to satisfy the Title II! requirements for permission

to electronically eavesdrop, an insufficient showing was made to

justify a forcible surreptitious entry.

9

Upon the Government’s appeal to the Court of Appeals, it

was held:

“The District Court was thus correct insofar as it

subjected the request for authorization of

Surreptitious entry to separate Fourth

Amendment consideration. Since in the absence

of exigent circumstances, the Fourth Amendment

commands compliance with the warrant

requirement, we would normally countenance

secret entry by federal agents for the purpose of

installing, maintaining, or removing listening

devices only under the following conditions: (1)

where, as here, the District Judge to whom the

interception application is made is apprised of

the planned entry; (2) the judge finds, as he did

here, that the use of the device and the

surreptitious entry incident to its installation and

use provide the only effective means available to

the Government to conduct its investigation; and

(3) only where the judge specifically sanctions

such an entry in a manner that does not offend

the substantive commands of the Fourth

Amendment.” 563 F. 2d at 643-44.

In United States v. Agrusa, 541 F. 2d 690 (8 Cir. 1976), cert.

denied, 429 U.S. 1045 (1977), the court upheld a surreptitious

entry because the order specifically authorized the break-in. The

majority in Agrusa acknowledged the holding might be different

if the supervising judge did not specifically authorize the break-

in. 541 F. 2d 696, fn. 13. The court limited its decision by the

following language:

“We hold that law enforcement officials may,

pursuant to express court authorization to do so,

forcibly . . . enter business premises. . . .

* * *

10

We express no view on the result which obtains

when one or more of these factual variants is

altered.”

The other side of the issue presented in this petition is found

in United States \ Scafidi, 564 F. 2d 633 (2 Cir. 1977), cert.

denied, sub. nom. Vigorito v. United States, 46 L.W. 3704 (May

15, 1978). There, the court held that an order authorizing

electronic surveiilance carries,

“its own authority to make such reasonable entry

as may be necessary to effect the ‘seizure’ of the

conversation.

We, therefore, hold that when an order has been

made upon adequate proof as to the probable

cause for the installation of a device in particular

premises, a separate order authorizing entry for

installation purposes is not required.” 564 F. 2d

at 640.

The Court of Appeals for the Third Circuit in deciding the

case at bar, grounded its decision upon the holding of United

States v. Scafidi, supra. While recognizing the “irreconcilable

conflict among the various courts of appeals” the Third Circuit

did not give any reasoning why it favored the Scafidi rule over

the rule set out in Ford and Application of the United States.

Compounding the difficulties in attempting to find consistency

in the circuits, the Eighth Circuit was asked to rehear United

States v. Agrusa, supra, en banc. 541 F. 2d 704. The court was

evenly divided and the petition for rehearing was consequently

denied. However, the four dissenters in the Eighth Circuit

indicated they had “grave doubts” that any judicial order

authorizing a break and entry would be valid.

In addition to the foregoing cases, a District Court within

the Sixth Circuit, in United States v. Finazzo, 429 F. Supp. 803

(E.D. Mich. 1977) has adopted the Ford rationale and required

independent authorization for forcible entries to carry out an

otherwise lawful oral interception order.

There can be no denial that a serious and irreconcilable

conflict now exists among the circuits with respect to an

important and sensitive area pertaining to Title III. There can be

no question but that had petitioner been tried in the District of

Columbia, the Fourth Circuit and probably the Eighth Circuit,

the evidence would have been suppressed. It is unjust to litigants

to permit incriminatory evidence to be admissible solely upon

the fortuitous circumstance of venue. The issue presented is of

great public interest and of enormous importance to petitioner

and to the proper administration of Title IIL.

In opposing certiorari recently in United States v. Scafidi,

supra, the Government represented that the problem presented

may not be a recurring one inasmuch as the Department of

Justice has recently instructed its supervising attorneys to seek

explicit judicial approval for each contemplated break-in.

Presumably, the Government will again seek to oppose certiorari

on the same grounds. Anticipating such an argument, petitioner

suggests that such a policy change is an inappropriate basis for

denial of certiorari. First, it does not answer at all the argument

that this petitioner has been subjected to an injustice. Second, it

seems to concede the correctness of petitioner’s position that

such authorization must be obtained. The argument would be

more seemly if coupled with a confession of error. Third,

petitioner contends that prior judicial authorization for a break-

in is a constitutional command; not simply an administrative

matter which may subsequently be withdrawn or amended by

administrative directive. Fourth, the number of similar cases in

litigation at various stages may well far exceed the handful of

reported opinions that have appeared to date. Fifth, irrespective

of the position of the Department of Justice, this issue will

12

surely find its way into the federal system through state

prosecutions since the impermissibility of an unauthorized

break-in (assuming it is impermissible) is a violation of the

Fourth Amendment.

Unlike United States v. Scafidi, supra, which has been so

recently the subject of a denial of certiorari, this case presents

the issue in a more straightforward manner. Here, there is but

one aggrieved party with no issue as to standing. Scafidi

involved numerous parties, only one of whom had any arguable

standing to raise the issue of an illegal breaking and entry to

install a listening device. Furthermore, the case at bar, unlike

any of the other reported decisions, involves a situation where it

is admitted the Government agents made no effort to apprise the

supervising court, even informally, of their intention to commit

a break and entry. ‘

It is submitted that this case is the proper vehicle for

resolution of an important issue which is ripe for decision.

The decision below raises an important issue with respect to

the supervisory powers of the courts in administering Title Ill

and a question of first impression regarding statutory

interpretation of an important aspect of Title III.

Title II] imposes upon the courts a substantial responsibility

in carrying out the congressional mandate. The proper role of a

supervising judge is in doubt due to the conflict among the

circuits. The court below, adopting the rationale of United

States v. Scafidi, supra, was of the view that the statutory

permission to eavesdrop. electronically upon _ oral

communications implied congressional approbation of break-ins

without prior judicial approval. This reasoning is fallacious.

Intercepting oral communications does not necessarily imply a

13

surreptitious entry. Modern technology permits the aura!

acquisition of conversations from great distances without

necessitating physical intrusions in every case.*

ihe obious deficiencies and dangers in the procedure

adopted by the Government need only be alluded to in passing.

In the case at bar, as noted, the Government made no attempt to

advise the court that a break-in was contemplated. The agents

received no instructions from anyone with respect to how they

were to conduct themselves on the premises. After they broke

into petitioner’s premises, they filed no report and made no

record of their activities. No judge evaluated the need for a

break-in. Alternative avenues entailing less intrusive methods

were never discussed; e.g., installation by way of a ruse or use of

an informant or decoy. No affidavits or testimony were

submitted to support the Government's desire to conduct a

break and entry. No order was ever issued limiting the number

of times the agents could enter, the number of agents to be on

the premises, the amount of time the agents would be permitted

to search the premises for “safety” reasons, the rights and duties

of the agents while on the premises, the right to make

subsequent entries to re-position, repair, maintain or remove the

equipment, the right of the agents to be armed, the duty to

advise local police of the break-in, the duty of Government

attorneys to supervise the agents, or consideration of whether

the premises would likely be vacant thereby lessening the chance

of an unfortunate incident.

While it may be argued that it is not within the expertise of

a federal judge to pass upon the methods selected by

Government agents in carrying out their plans to electronically

eavesdrop upon oral communications, the language of this

Court in a slightly different setting is most appropriate:

4. See Lopez v. United States, 373 U.S. 427, 468, fn. 16 (Brennan, J.,

dissenting). See also Silverman v. United States, 365 U.S. 505, 508-09.

14

“We cannot accept the Government's argument

that internal security matters are too subtle and

complex for judicial evaluation. Courts regularly

deal with the most difficult issues of our society.

There is no reason to believe that federal judges

will be insensitive to or uncomprehending of the

issues involved in domestic security cases.

Certainly, courts can recognize that domestic

security surveillance involves different

considerations from the surveillance of ‘ordinary

crime.’ If the threat is too subtle or complex for

our senior law enforcement officers to convey its

significance to a court, one may question whether

there is probable cause for surveillance.” United

States v. United States District Court, 407 U.S.

297, 320.

Title III is silent as to obligations of the Government in

securing an authorization to eavesdrop on oral communications

where a break-in is contemplated or deemed necessary.

Irrespective of the constitutional requirements, the courts in

Agrusa, Scafidi (concurring opinion of Judge Gurfein) and even

the court below all suggested that, in making Title Ill

applications, the Government should apprise the supervising

judge of the necessity to break in and the court should take it

upon itself to make a decision whether to permit such an entry.

But no guidance has been given to the courts as to what it is the

district judge should do, other than say yes or no. It is essential

that if such a duty is imposed upon the supervising court, either

implicitly by Title III itself or by an independent supervisory

duty, then the parameters of such supervision must be set out.

The faiiure of this Court to set out specific guidelines will only

result in jeopardizing future prosecutions. Even under the new

Department of Justice guideline in which the court is to be

apprised of the Government's intentions, there will be litigation

dealing with the proper exercise of supervision by the court

unless the issue is clarified by the Court in this case.

15

The decision below raises an important question of first

impression regarding the role of an appellate court in reviewing

the alleged excessiveness of a sentence.

The petitioner was sentenced to two concurrent five-year

terms of imprisonment. He had no prior criminal record. Of the

seven individuals indicted as a result of the criminal

transaction, only one other defendant had as limited a

participation as petitioner and that individual was the person

who actually stored the stolen goods. The only real distinction

between petitioner and that other individual was that petitioner

failed to plead guilty. He was tried and convicted on two of the

five counts.

The apparent disparity in sentences should be grounds for

some judicial review and explanation, if justified. When raised

on appeal, the Government answered the contention with the

following complete argument:

“Appellant contests as excessive the sentence

imposed on him for the crimes which the jury

found he committed.

That sentence being within the statutory

limitation, it may not be reviewed by this court.”

The court below dealt with the issue in a footnote, as

follows:

“Appellant also maintains . . . that the trial court

abused its discretion in sentencing Dalia to two

five-year concurrent terms. We find no merit to

these contentions.”

16

There is no clear directive to the courts of appeals with

respect to the scope of appeal of an allegedly excessive

sentence. Certain recent cases have intimated that a remedy for

an excessive sentence will lie if it rises to the level of “an abuse of

discretion”. Woosley v. United States, 478 F. 2d 139 (8 Cir.

1973); United States v. Robin, 545 F. 2d 775 (2 Cir. 1976). The

Government in the case below took the position that any

sentence within a statutory limit is not reviewable, citing United

States v. Lee, 532 F. 2d 911 (3 Cir.), cert. denied, 429 U.S. 838

(1976) and Government of the Virgin Islands v. Venzen, 424 F.

2d 521 (3 Cir. 1970). .

An issue of such significance to the public, to criminal

defendants and to the administration of justice should be the

subject of a definitive ruling by this Court.

CONCLUSION

For the foregoing reasons set forth above, it is submitted a

writ of certiorari to the United States Court of Appeals for the

Third Circuit should be issued.

Respectfully submitted,

s/ Louis A. Ruprecht

Attorney for Petitioner

la

APPENDIX

DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT DATED MAY 53,

1978

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

No. 77-1277

UNITED STATES OF AMERICA,

vs.

LAWRENCE DALIA,

Appellant

On Appeal From the United States District Court for the

District of New Jersey

(D.C. Crim. No. 75-488-1)

Argued January 5, 1978

Before: ROSENN and HIGGINBOTHAM, Circuit Judges, and

VanARTSDALEN, District Judge*

Jonathan L. Goldstein,

United States Attorney

Maryanne T. Desmond,

Assistant U.S. Attorney

* Honorable Donald W. VanArtsdalen, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

2a

Decision of the United States C ourt of Appeals for the Third

Circuit Dated May 3, 1978

Federal Building

Newark, New Jersey 07102

Attorneys for Appellee

Louis Ruprecht

Ruprecht & Graham

1180 Raymond Boulevard

Newark, New Jersey 07102

Attorney for Appellant

OPINION OF THE COURT

(Filed May 3, 1978)

Higginbotham, Circuit Judge

The crucial issue before this Court in this appeal from a

final judgment of conviction stems from the use of electronic

surveillance to obtain evidence of Lawrence Dalia’s complicity in

the crimes of which he was found guilty. Dalia was found guilty

under two counts of a five-count indictment for conspiracy to

transport, receive and possess stolen goods in violation of 18

U.S.C. §371 (1970) and for receiving stolen goods while in

interstate commerce in violation of 18 U.S.C. §§2, 2315 (1970).

Dalia’s co-defendant, Daniel Rizzo, pleaded guilty to the

offenses charged in the indictment prior to the commencement

of the trial. Five named co-conspirators were charged in a prior

indictment and pleaded guilty to the charge of possessing goods

stolen in interstate commerce in violation of 18 U.S.C. §659

(1970). These five individuals were arrested on April 5, 1973, by

FBI agents who, in the execution of a search warrant, found the

stolen 664 rolls of polyester fabric valued at approximatciy

$250,000. These rolls of fabric were the same goods underlying

the offenses for which the appellant, Dalia, was convicted. Dalia

was sentenced to serve two concurrent five-year terms.

~-@

aca tata An, I

3a

Decision of the United States Court of Appeals for the Third

Circuit Dated May 3, 1978

l.

On March 14, 1973, Judge Frederick B. Lacey granted the

United States Department of Justice authorization to intercept

wire communications emanating from two telephones located in

Dalia’s business office pursuant to Title II] of the Omnibus

Crime Control and Safe Streets Act of 1968, 18 U.S.C. §2510 er

seq. The original order authorized wire interception for a period

of twenty days. Upon the expiration of that order a new order

was issued authorizing the interception of both wire and oral

communications. The second order, issued April 5, 1973,

provided that the Special Agents of the FBI were authorized to:

Intercept oral communications of Larry

Dalia, and others as yet unknown, concerning the

above-described offenses at the business office of

Larry Dalia, consisting of an enclosed room,

approximately fifteen (15) by eighteen (18) feet in

dimension, and situated in the north westernly

corner of a one-story building housing Wrap-O-

Matic Machinery Company, Ltd., and Precise

Packaging, and located at 1105 West St. George

Avenue, Linden, New Jersey.

By an order dated April 27, 1973, the authorization to intercept

oral and wire communications was extended for a maximum of

twenty days. Pursuant to these orders, two business phones used

by Dalia were electronically surveilled and a hidden microphone

was installed in his place of business. Each interception order

directed the Department of Justice to provide the court with

progress reports on the fifth, tenth and fifteenth days of

surveillance. Finally, on May 16, 1973, the interception of wire

and oral communications terminated.

4a

Decision of the United States Court of Appeals for the Third

Circuit Dated May 3, 1978

Appellant's major contention on appeal to this Court

pursuant to 28 U.S.C. §1291 is that 2 electronic listening device

was unlawfully installed on his business premises by government

agents after gaining entrance by surreptitious entry not explicitly

authorized in the court’s orders. Therefore, appellant argues, the

trial judge erroneously denied his motion to suppress tapes

obtained from the oral intercepticn.' We agree with Judge Lacey

that an order authorizing the interception of oral

communications does not require explicit authorization for a

forcible, surreptitious entry and we affirm.

Appellant argues that the fourth amendment prohibits use

of evidence obtained from an electronic listening device which

agents installed in his premises after forcible and surreptitious

entry without express judicial approval for such entry. In

essence, the appellant contends that while the surveillance itself

may be legally authorized by a search warrant, the legality of the

break-in is entitled to separate fourth amendment scrutiny.

Judge Lacey held that such explicit judicial approval of a break-

in was not required when the surveillance was properly

authorized.

1. Appellant also maintains that the supervising judge was misled by the

government's progress reports and that the continuing electronic surveillance

was unjustifiable, not so minimized as claimed by the government, and,

presumably, !acking in probable cause. Appellant argues that the trial court

erred in failing to interrogate a juror to determine whether the verdict was

“tainted” by extraneous influences, that the disclosure of a privileged

communication between Dalia and his wife to a grand jury that did not issue

his indictment justifies the suppression of all electronically intercepted evidence

and, finally, that the trial court abused its discretion in sentencing Dalia to two

five-year concurrent terms. We find no merit to these contentions.

Sa

Decision of the United States Court of Appeals for the Third

Circuit Dated May 3, 1978

Since Judge Lacey filed his opinion, the Fourth, Second

and D.C. Circuits have rendered decisions on the issue involved

in this case. In Application of United States for an Order

Authorizing the Interception of Oral Communications, 563 F.2d

637 (4th Cir. 1977), the court held that government agents could

covertly enter private premises to install a listening device only

after the district court had made an independent determination

to allow such covert entry. 563 F.2d at 644. Similarly in United

States v. Ford,? 553 F.2d 146 (D.C. Cir. 1977), in an opinion per

Judge Skelly Wright, the court held that the Fourth Amendment

required that government agents seek a valid warrant specifically

authorizing surreptitious entry to install electronic surveillance

devices. In Ford, supra, the court’s order authorized

surreptitious entry; however, the order was found invalid on its

face because of overbreadth. 553 F.2d at 165. To the contrary, in

United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977), the Second

Circuit held that implicit in a court order authorizing the

interception of oral communications was the concomitant

authorization to secretly enter the premises to install the

electronic surveillance device.

2. United States v. Finazzo, 429 F. Supp. 803 (E.D. Mich. 1977), held

that independent court authorization was required for covert entry to carry out

an oral interception order. That court, in an opinion per now Circuit Judge

Damon Keith, followed the analysis of United States v. Ford, supra, and the

“reservations expressed by the Court of Appeals for the Eighth Circuit” in

United States v. Agrusa, 541 F.2d 690 (8th Cir. 1976). In Agrusa, supra, the

interception order contained express court authorization to break and enter.

The court noted at 541 F.2d at 696 n. 13:

We do not decide what result obtains if the

officers act without express court authorization

to break and enter (although with court

authorization to intercept), We are certain,

however, that the resolution becomes much

more difficult in that event, and we commend

the procedures employed here to law

enforcement officials in the future.

6a

Decision of the United States Court of Appeals for the Third

Circuit Dated May 3, 1978

[A]ny order approving electronic surveillance of

conversations to be overheard at a paiticular

private place, must, to be effective, carry its own

authority to make such reasonable entry as may

be necessary to effect the “seizure” of the

conversations.

We, therefore, hold that when an order has

been made upon adequate proof as to the

probable cause for the installation of a device in

particular premises, a separate order authorizing

entry for installation purposes is not required.

564 F.2d at 640.

Judge Lacey found that in this case a surreptitious entry

was within contemplation.

On this set of facts, I find that the safest and

most successful method of accomplishing the

installation of the wiretapping device was

through breaking and entering the premises in

question. Dalia in fact stated that, to the best of

uis knowledge, it would be impossible to install

such a device in that location without gaining

access to the buiiding forcibly. Affidavit of Dalia

at 44. In most cases the only form of installing

such devices is through breaking and entering.

The nature of the act is such that entry must be

surreptitious and must not arouse suspicion, and

——*

aberes

Ta

Decision of the United States Court of Appeals for the Third

Circuit Dated May 3, 1978

the installation must be done without the

knowledge of the residents or occupaats.?

426 F. Supp. 862, 866 (1977).

We accept Judge Lacey’s finding that a surreptitious entry

was the most effective means for installing the interception

device as well as his finding that the installation was based upon

probable cause and executed in a reasonable fashion.

In rejecting appellant's contention in this case that separate

authorization was required for the forcible surreptitious entry,

we do not adopt a rule that specific authorization is never

required. In the future, the more prudent or preferable approach

for government agents would be to include a statement

regarding the need of a surreptitious entry in a request for the

interception of oral communications when a break-in is

contemplated.* This burden is minimal in light of the fourth

amendment considerations that could be later raised.

3. When Dalia’s counsel argued before the commencement of trial the

need for greater court supervision in the covert installation of interception

devices, Judge Lacey clarified, for the record, his involvement in the follow-up

of his order. He stated that: (1) he did not discuss with the supervising attorney

or the agents how the order would be carried out and gave no limiting

instructions on this matter and (2) he did not discuss afterwards how the order

was carried out or how entry was made. Consequently, we cannot affirmatively

state that the record demonstrates that Judge Lacey was actually aware of the

surreptitious entry; however, his opinion shows that he was cognizant that such

surreptitious entry might be most appropriate.

4. When the request to intercept oral communications was made in 1973

in the instant case the Department of Justice was not on notice of any conflict

among the circuits. Since that time, absent a Supreme Court decision, there

has developed an irreconcilable conflict among the various courts of appeals.

9a

8a

Judgment Dated May 3, 1978

Decision of the United States Court of Appeals for the Third

Circuit Dated May 3, 1978 JUDGMENT

The judgment of the district court will be affirmed. This cause came on to be heard on the record from the

United States District Court for the —--- District of New Jersey

TO THE CLERK: and was argued by counsel on January 5, 1978.

Please file the foregoing opinion. On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said District

s/ A. Leon Higginbotham Court, filed January 27, 1977, be, and the same is hereby

Circuit Judge affirmed.

JUDGMENT DATED MAY 3, 1978 ATTEST:

UNITED STATES COURT OF APPEALS s/ Thomas (illegible)

Clerk

For the Third Circuit

May 3, 1978

No. 77-1277

UNITED STATES OF AMERICA

VS.

DALIA, LAWRENCE,

Appellant

(D.C. Criminal No. 75-488-1) 1

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE —— DISTRICT OF NEW JERSEY

Present: ROSENN and HIGGINBOTHAM,, Circuit Judges and

VANARTSDALEN, District Judge*

* Honorable Donald W. VanArtsdalen, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

10a

PORTION OF DECISION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

DATED JANUARY 11, 1977 RELATING TO

SURREPTITIOUS ENTRY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Criminal #75-488

UNITED STATES OF AMERICA,

Plaintiff

LAWRENCE DALIA,

Defendant.

OPINION

By LACEY, J.

By an application dated March 14, 1973 the United States

Department of Justice requested and received authorization to

intercept telephonic conversations emanating from two

telephones located on the business premises of defendant

Lawrence Dalia.* On April 5, 1973 the Justice Department

sought and received an extension of their authority to intercept

wire communications of Dalia and others, and, on the same

date, authority was acquired to commence oral interception at

Dalia’s office. Subsequently, on April 27, 1973 the final request

for an extension of its eavesdropping authority was approved by

the court. As a result of these orders, wire interception devices

* The application and authorization were made pursuant to 18 U.S.C.

§2516.

OE te ee ay

Portion of Decision of the United States District Court for the

District of New Jersey dated January 11, 1977 Relating to

Surreptitious Entry

were installed and did operate from March 15 to May 16, 1973,

and an oral interception device was similarly installed and did

operate between April 5 and May 16, 1973. The objective sought

to be obtained by these interceptions was a determination of the

scope of and participants in an alleged conspiracy involving theft

from interstate shipments and interference with commerce.

An indictment charged this defendant with conspiracy and

substantive crimes (18 U.S.C. §§271 and 2315) related to the

theft and possession of an interstate shipment of textiles on or

about April 3, 1973. On June 18, 1976 a jury verdict of guilty

was returned.

In presenting its case against defendant Dalia, the

government used the results of the aforementioned electronic

surveillance. Defendant objected and moved to suppress the

results of all illegal electronic surveillance and for an evidentiary

hearing regarding the manner in which those oral and wire

interceptions were accomplished. A_ post-trial evidentiary

hearing was held on July 29, 1976.

In support of his motion, Dalia contends that those agents

installing the device to intercept oral communications did

unlawfully break and enter and trespass upon the premises of

defendant, and by so doing did render any evidence obtained

from that illegal entry inadmissible.

The bases for that contention are (1) that the government

was required to seek judicial approval of an otherwise illegal

breaking and entering for the purpose of installing an electronic

eavesdropping device; (2) that such approval was neither sought

nor obtained; and (3) that the use of evidence obtained from the

oral interception device is contrary to the fourth amendment

protection against unreasonable searches and seizures.

2a

Portion of Decision of the United States District Court for the

District of New Jersey dated January 11, 1977 Relating to

Surreptitious Entry

Defendant's second contention is that the progress reports

submitted by the government for extensions of time for the wire

surveillance were falsified and if the court had known, no

extensions would have been allowed. His final contention is that

the tapes should be suppressed because the government failed to

adhere to minimization requirements.

Defendant preliminarily argues that the statements of the

government, as well as its special agent, that normal

investigative procedures reasonably appeared unlikely to succeed

if tried, failed to satisfy the “full and complete statement”

requirements of 18 U.S.C. §2518(1)(c). The supporting affidavits

submitted on April 5 and April 26, 1973, allegedly fell short of

the elements enunciated by this court in United States v.

Falcone, 364 F. Supp. 877, 889 (D.N.J. 1973), affd, 505 F.2d

478 (3d Cir. 1974), cert. denied, 420 U.S. 955 (1975), in that the

“applications for extensions offer very little toward a finding of

the anticipated failure of standard methods of investigation.”

Defendant's Brief at 10. According to defendant, the

government’s sources could have verified the degree of

involvement of defendant's co-conspirators and wiretapping was

unnecessary. Additionally, it is argued, the agents, through

wiretapping conversations pursuant to the original order, should

have been able to pinpoint the locations or drops where stolen

goods were stored so that continued eavesdropping was

unnecessary.

In an application for a court-ordered electronic surveillance

under Title Ill of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. §2510, ef seqg., the government must

present the court with

»

“\

l3a

Portion of Decision of the United States District Court for the

District of New Jersey dated January 11, 1977 Relating to

Surreptitious Entry

a full and complete statement as to whether or

not other investigative procedures have been tried

and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too

dangerous. ...

18 U.S.C. §2518(1)(c). The court may then authorize the

interception if it determines that

normal investigative procedures have been tried

and have failed or reasonably appear to be

unlikely to succeed if tried or to be too

dangerous ....

18 U.S.C. §2518(3)(c). The statutory burden on the

government is not great in showing compliance with §2518(3)(c)

and the government “need not prove to a certainty that normal

investigative techniques will not succeed, but rather need only

show that such techniques ‘reasonably appear to be unlikely to

succeed if tried.” United States v. Armocida, 515 F.2d 29, 38

(3d Cir.), cert. denied, 423 U.S. 858 (1975).

Sections 2518(1)(c) and (3)(c) must be read in a common

sense fashion. S. Rep. No. 1097, 90th Con., 2d Sess., 1968 U.S.

Code Cong. & Admin. News at 2112, 2190. See also United

States v. Armocida, supra. They are designed to assure that

wiretapping is not resorted to in situations where traditional

investigative techniques would suffice to expose the crime.

United States v. Kahn, 415 U.S. 143, 153 n. 12 (1974); United

States v. Robertson, 504 F.2d 289, 293 (Sth Cir. 1974), cert.

denied, 421 U.S. 913 (1975). Their purpose “is not to foreclose

electronic surveillance until every other imaginable method of

investigation has been unsuccessfully attempted, but simply to

ida

Portion of Decision of the United States District Court for the

District of New Jersey dated January 11, 1977 Relating to

Surreptitious Entry

inform the issuing judge of the difficulties involved in the use of

conventional techniques.” United States v. Pacheco, 489 F.2d

§54, 565 (Sth Cir. 1974), cert. denied, 421 U.S. 909 (1975).

| am in agreement with the Second Circuit in United States

v. Steinberg, 525 F.2d 1126 (1975), cert. denied, 44 U.S.L.W.

3659 (U.S. May 18, 1976) that “[w]hen one endeavors to prove a

negative, it is difficult to be very specific about it” and | am

“loathe to set impossibly burdensome standards.” /d. at 1130.

See also United States v. Falcone, supra, 364 F. Supp. at 888-89;

United States v. Staino, 358 F. Supp. 852, 856-57 (E.D. Pa.

1973). | am staisfied that the government has substantially

complied with the statutory mandate.

The three probable cause affidavits that Special Agent

Hokenstad submitted to me were facially sufficient for me to

make a determination that alternative investigative measures had

either been tried and failed, see United States v. Robertson,

supra, reasonably appeared unlikely to succeed if tried, see

United States v. Armocida, supra, 515 F.2d at 38, or were too

dangerous to be used. /d. Defendant's allegations as to

pinpointing locations and the use of sources are not supported

by affidavit or any other materials and are mere speculation.

Defendant next contends that an applicant for an

interception order is expected to request the approval of the

court to break and enter in order to install the electronic device.

The court, it is asserted, did not therefore pass upon the

question of whether the authorized surveillance could be

accomplished in some lesser manner.

In support of this argument, defendant relies upon the

holding in United States v. Ford, 414 F. Supp. 879 (D.D.C.

1Sa

Portion of Decision of the United States District Court for the

District of New Jersey dated January 11, 1977 Relating to

Surreptitious Entry

1976). In that case the ruse of two bomb scares at defendant's

premises was used to gain entry by the government. The warrant

had stated that “entry and re-entry may be accomplished in any

manner, including, but not limited to, breaking and entering or

other surreptitious entry, or entry and re-entry by ruse and

stratagem.” /d. at 881-82. The court found the warrant to be

invalid. It held that the issuing judge had a nece isary role, under

18 U.S.C. §2518(4), in determining the manne, of entry and that

this role had been wrongfully and without direction assigned to

the executing officers. The warrant was found to be facially

overbroad and illegal. /d. at 884-85.

Defendant also relies upon the dicta of the court in United

States v. Agrusa, No. 76-1036 (8th Cir. 1976), where the court

approved interception of wire and oral communications

conducted by means of a forcible and surreptitious entry because

there was prior judicial direction to the officers to break and

enter. The court stated, however, that:

we do not decide what result obtains if the

officers act without express court authorization

to break and enter (although with court

authorization to intercept), We are certain,

however, that the resolution becomes much more

difficult in that event, and we commend the

procedures employed here to law enforcement

officials in the future.

Id. Slip Opinion at I! n. [3.

Neither 18 U.S.C. §2518(4), which specifies the necessary

contents of a Title II] authorization order, nor Rule 41(c) of the

Federal Rules of Criminal "rocedure, which indicates that a

16a

Portion of Decision of the United States District Court for the

District of New Jersey dated January 11, 1977 Relating to

Surreptitious Entry

warrant must identify the property, and name or describe the

person or place to be searched, requires the court to direct the

manner of entry.

Because the warrant for the seizure of oral communications

was based on probable cause, the question becomes whether or

not the manner of executing the warrant was unreasonable.

The majority of cases concerning the manner of entry

pursuant to a warra * are framed in terms of whether or not the

manner of entry aiu/or execution of the warrant were so

excessive as to be unreasonable under the fourth amendment.

Thus where real property is involved, there is the general

requirement that officers must give notice of their authority and

purpose and be refused entry before they may break into the

premises to be searched. 18 U.S.C. §3109. The general purposes

of this requirement are to protect against unnecessary breaches

of the peace, and prevent embarrassing sudden exposure of

private activities. See United States v. Bustamante-Gamez, 488

F.2d 4, 11-12 (9th Cir. 1973), cert. denied, 416 U.S. 970 (1974).

In United States v. Gervato, 474 F.2d 40 (3d Cir.), cert.

denied, 414 U.S. 864 (1973), the court held that there is also no

requirement that the premises be occupied at the time of a

search. In Gervato, the agent knew by surveillance that the

premises were unoccupied. The agent forced open the door and

conducted the authorized search. The court, in its analysis,

outlined the history of the fourth amendment and indicated that

its primary purpose was to put an end to general searches and

warrants, i.e., to insure that the place and property to be seized

were particularly described. /d. at 41-44.

_ eC ee ences enna tania —_— ~~ . Ga emnae) ae — pereenennn ee ee

rere Bee cee, 6 I AO

17a

Portion of Decision of the United States District Court for the

District of New Jersey dated January 11, 1977 Relating to

Surreptitious Entry

It should be noted that there was no indication in Gervato

that the agent should have received a court order to “break and

enter” the premises.

The reasonableness of the manner of carrying out a search

has also been considered in relation to body searches. Even in

such searches involving intrusions into the human body, there is

no requirement that prior judicial authorization be required. In

United States v. Mastberg, 503 F.2d 465 (9th Cir. 1974), the

court found that “real suspicion” and not independent judicial

authorization is sufficient for a vaginal body-cavity search.

In Rochin v. People of California, 342 U.S. 165 (1952), it

was held that stomach pumping evidence should be suppressed

because it “shocked the conscience of the Court” and offended

its source of decency and not because of lack of prior judicial

authorization.

The affidavits which supported the application for the

warrant in question indicated that resort to electronic

surveillance, to overhear meetings at Dalia’s office and

conversations on Dalia’s telephones, was required to identify the

sources of Dalia’s stolen goods, those working with him to

transport and store stolen property, and the scope of the

conspiracy. Oral evidence of this criminal enterprise was only

available inside Dalia’s business premises. On this set of facts, I

find that the safest and most successful method of accomplishing

the installation of the wiretapping device was through breaking

and entering the premises in question. Dalia in fact stated that,

to the best of his knowledge, it would be impossible to install

such a device in that location without gaining access to the

building forcibly. Affidavit of Dalia at 44. In most cases the

only form of installing such devices is through breaking and

18a

Portion of Decision of the United States District Court for the

District of New Jersey dated January !1, 1977 Relating to

Surreptitious Entry

entering. The nature of the act is such that entry must be

surreptitious and must not arouse suspicion, and the installation

must be done with the knowledge of the residents or occupants.

Once a showing of probable cause is made to support the

issuance of a court order authorizing electronic surveillance,

thereby sanctioning the serious intrusion caused by interception,

implicit in the court’s order is concomitant authorization for

agents to covertly enter the premises in question and install the

necessary equipment. See United States v. Altese, Crim. No. 75-

341, slip op. at 52 (E.D.N.Y. Oct. 14, 1976). The court in Altese

held that:

Entry to install bugging devices is but a mere

condition precedent that must necessarily be

satisfied if the purpose behind an intercept order

is to be effectuated. Entry to initiate surveillance

is not another intrusion. Hence there need not be

express authorization in the intercept order that

issues for that prerequisite.

Id. at 53. I agree with this rationale and find that under these

circumstances, notwithstanding the decision in Ford, it was not

necessary for the government to obtain explicit judicial approval

of an otherwise illegal breaking and entering for the purpose of

installing an electronic eavesdropping device.

* * *

=