# Petition — Dalia v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1105%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 238

## Text

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

SY De cnnegavedads dunt bens elédeeeneotncscacs l
PD, Sin.cad oS ebntsdebceeesccdsegeetscoccbocececs 2
ey ED oc nce ec dineeenes daneenrecedetbhesese 2
2

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

© RE noe IRE RRR Tornat > — er RTE

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.

* * *

=

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1105%3A1. Public record. Not legal advice.