Respondents Brief — Dalia v. United States

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died. Oe Bit) 5

| Sugrome Court, . 4.

FIL? 3

DEC 22 i9ft

MICHAEL RODAK, JR. CLERK

wawese se OF

OCTOBER TERM, 1978

LAWRENCE DALIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCREB, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

WILLIAM C. BRYSON

KENNETH S. GELLER

Assistants to the Solicitor General

JEROME M. FEIT

KATHERINE WINFREE

Attorneys

Department of Justice

Washington, D.C. 20530

EE ee ee

pNP ON eS eNO

I TI. acccittttrencnniincsenttsicnenpeneaniatinansis

Statute and ruie involved ..........................-...--

ID GE GI cceccitesiteinctpnercctinntnmticie

SD | sinctiiiitiatbiiviaiieiedaaniiiaiiaiaiiinasiailidesiastiiaalianin

Il.

Ill.

Conclusion ............

The Fourth Amendment does not pro-

hibit court-authorized surreptitious en-

tries to install electronic eavesdropping

TE Scccitianicineancteceaieaslatiieitiiietiiamaniantntainiin

A. Electronic eavesdropping is con-

stitutionally permissible -...............

B. ‘Title III provides a scheme for elec-

tronic eavesdropping that meets

constitutional standards ................

C. The Fourth Amendment permits

surreptitious entries to execute

eavesdropping orders issued in

compliance with Title III —..........

District courts have statutory power to

authorize surreptitious entries for the

purpose of installing electronic eaves-

The entry onto petitioner’s business

premises to install a listening device

was lawful even though the district

court did not separately and expressly

authorize the entry in advance

aa wn wo -

Ill

CITATIONS Cases—Continued Page

Cases: Page Olmstead v. United States, 277 U.S. 438 _ 20

Agneilo v. United States, 269 U.S. 20 -... 30 On Lee v. United States, 343 U.S. 747 .... 20, 21

; . Osborn v. United States, 385 U.S. 323..22, 27, 34

Alderman v. United States, 394 U.S. 165 .. 28 Outla State. 208 ui 0 én te on ’

Andresen v. Maryland, 427 U.S. 463 -.... 55 . - - ; — ot , 99

ee ee. a Payne v. United States, 508 F.2d 1391,

‘hese -_ . 563 F.2d cert. denied, 423 U.S. 933 .................... 29

ee ie a ow Penton v. Brown, 1 Keble 699, 83 Eng.

SS i ee eee 11a "01/29 92. SEI - TIED Atcissiadcaestinliniptinidesleddntahinpideamhabaaies 31

: ‘ a SS. 41.22}; 22, 23, 26,

ee ee ee ee ee a a People v. Johnson, 231 N.Y.S.2d 689 29

Boyd v. United States, 116 U.S. 616 ........ 51 . rye 55 Mise. 2d 1075, 287 N.Y.S.

Chapman v. United States, 365 U.S. 610 .. 30 cag gE ne ae ogg

Cow v. United States, 449 F.2d 679 ....... 25 OO ee ee ee a

; age a aa an eee ae ee

ee Ane ‘on Ua. 80 oe 31 Scott v. United States, 436 U.S. 128 ...... 23, 25

Goldman v. United States, 316 U.S. 129 .. 20, 21 Silverman v. United States, 365 US.

EE * scnninidisningsatiddendiogsumiginimatesidasa 20, 33-34, 36, 41

aay rt tage: ot ee - Stanley v. Georgia, 394 U.S. 557 ............ 48

Irvine v. California, 347 U.S. 128 ........... 21, 36 a > senate: hemi aaineanoneaae

Katz v. United States, 389 U.S. a re _ State v. Dropolski, 100 Vt. 259, 136 A.

' or rte EU wilscenuhclasbtiictincacisedailisaaidiaaialendieiniis 29

Ker vy. California, 374 U.S. 23 -............ 30, 34,48 ;

Lewis v. United States, 385 U.S. 206 -... 45 arty Guttorves, 91 NM. 542, 657 P28 29

Lopez v. United States, 373 U.S. 427 -....... Se re teenie cee ak ok ae anh alee

Marron v. United States, 275 U.S. 192 -... 48 ~— ae 354 Mo. 74, 168 S.W. 29

McDonald v. United States, 335 U.S. 451 .. 50 A. ath OG. @s emma. ane

Michigan v. Tyler, 436 US. 499 30 Pe eee ee ee =

Miller v. United States, 357 U.S. 301 _..... 30 i ee ee ll a

Mincey v. Arizona, No. 77-5353 (June 21, we ye State, 61 Okia. Crim. 28, 299 =

ers Se OPA 80 9 Sa a en ae ee ae

Nardone v. United States, 308 U.S. 338 .. 43 oe a a » S41 F.2d 690,

Nixon v. Administrator of General Serv- cort, Conied, 429 US. 1065 19, 29, 31,

ices, 483 US. ADB oe ceecceeceencevneevneeeene 25 SS-Se, 42,

United States v. Barker, 546 F.2d 940 .... 19

United States v. Bobo, 477 F.2d 974 ...... 25, 27

Cases—Continued Page

United States v. Brown, 467 F.2d 419 .... 51

United States v. Brown, 556 F.2d 304 .... 29

United States v. Bustamonte-Gomez, 488

F.2d 4, cert. denied, 416 U.S. 970-........ 31

United States v. Cafero, 473 F.2d 489,

cert. denied, 417 U.S. 918 -................... 25, 27

United States v. Carter, 566 F.2d 1265,

cert. denied, No. 78-1326 (1978).......... 31

United States v. Chavez, 416 U.S. 562 ...... 25

United States v. Cox, 462 F.2d 1298 ........ 25

United States v. Cravero, 545 F.2d 406,

cert. denied, 429 U.S. 1100 —......02002. 51

United States v. Donovan, 429 U.S.

BIE siecabicbeciinlaiicsaonbcediehdiicasioiiiiaiateteaia cers 24, 25, 27, 41

United States v. Finazzo, 583 F.2d

Ee A ee RPT 19, 33, 42, 49

United States v. Ford, 414 F. Supp. 879,

og & £2 8) See 19, 48, 45, 49, 54

United States v. Gervato, 474 F.2d 40,

cert. denied, 414 U.S. 846 0000000000000... 29

United States v. James, 494 F.2d 1007,

cert, denied, 419 U.S. 1020 —................ 25

United States v. Kahn, 415 U.S. 148...... 25, 40

United States v. Murrie, 534 F.2d 695..... 31

United States v. New York Telephone Co.,

I I ihattateteeeicld alii aceasta 33, 43

United States v. O’Neill, 497 F.2d 1020 .. 25

United States v. Ramsey, 503 F.2d 524,

cert. denied, 420 U.S. 932 -.....00000000002... 25

United States v. Santora, 583 F.2d

NIE “suiiesieceuianiniaslunsetaaabiaaehadeleaiesinaeibi lied 19, 34, 41

United States v. Scafidi, 564 F.2d 633,

cert. denied, 486 U.S. 908 ..........02.2000... 18, 43,

47, 49, 55, 56

United States v. Sklaroff, 506 F.2d

en sii daieniadiideemnasinstianain 25, 27

Cases—Continued Page

United States v. Smith, 520 F.2d 74 ........ 31

United States vy. Tortorello, 480 F.2d 764,

cert. denied, 414 U.S. 866 -.........000..0...... 25

United States v. Turner, 528 F.2d 148 .. 25

United States v. United States District

- - Bit & See 23, 25, 33, 37

United States v. Volpe, 430 F. Supp. 931,

aff'd No. 77-1311 (2d Cir. Aug. 7,

1978), petition for a writ of certiorari

ID, HI IMI ccnisiicendsinteansionngheceniiccs 43

Zurcher vy. Stanford Daily, 486 U.S.

__ RRUREEIER ES UR AAT SES earn re ek Se 48, 55

Constitution, statutes and rule:

United States Constitution, Fourth

I " viniiisaiistsiseninctaertiahitessipicmpeicsneaininipsiin passim

District of Columbia Court Reform and

Criminal Procedure Act of 1970, Pub.

L. No. 91-358, 84 Stat. 473 -................ 46

Foreign Intelligence Surveillance Act of

1978, Pub. L. No. 95-511, 92 Stat. 1783:

i 52

Section 105(b)(1)(D) -2-0-------eee.. 52

Omnibus Crime Control and Safe Streets

Act of 1968, Pub. L. No. 90-351, 82

Stat. 197, 18 U.S.C. 2510 et seq:

18 U.S.C. 2510-2520 oooeeececoseeeectesee 8

18 U.S.C. 2510(5) ceecccsesscccccssseeeeeesssees 41

18 U.S.C. 2511 ooneccccncesccccccnseseccenneeseee 23

1S U.S.C, SENG nc nancnnnnnneneeennnene 57

~~ Tae 2

18 U.S.C. 2518 (1) cccccsecccessseeeeeeeeseeee- 40

18 U.S.C. 2518 (1) (b) (ii) 42

18 U.S.C. 2518 (1) (€) eecccoeeeeeeessseeeee 24, 27

Constitution, statutes and rule—Continued Page

18 U.S.C. 2518(3) (a) ..---------- siieaditall 23

18 U.S.C. 2518(8) (Id) .....--..-------eeeeee0 23

18 U.S.C. BB1B(B) (€) ..--ncccccecccececnceees 24, 27

Tee fh 0) | _ 23, 42

Ri Te |) 42

Ris oe SCNT) 23

BB UBL, SEABIE AD) oncceecccccceccsecesese 23, 42

TRB 0 24

CR te | | 24

18 U.S.C. 2618(8) (a) -........--2-.-2002220-- 24, 26

Rie Pe 24

18 U.B.C. BEIBC(IC) (B) <2.0.2cce0.c000220-- 57

Le | ae 6

Be EL ED cctescsesessecismiuniaennandiannstin 6

jk hee 30, 31, 34, 51

Fed. R. Crim. P.:

NII Te site snaciaieieenconsineaieaniibial 5, 15, 30, 33, 34

Appendix of Forms, Form 16 ............ 51

Miscellaneous:

ABA Standards for Criminal Justice,

Electronic Surveillance, General Com-

mentary; Commentary on _ Specific

Standards; Appendix D (Approved

BUGS PGE <cictsctniensniiinatiasiiniiniaing 39, 42

ABA Standards for Criminal Justice,

Electronic Surveillance, Standards of

the Tentative Draft, §§ 5.7-5.8 (Tenta-

8 of een 39

ABA Standards for Criminal Justice,

Electronic Surveillance, Proposed Final

Draft of Standards, §§ 5.7-5.8 inl

proved Draft 1971) .. 7a 39

Vit

Miscellaneous—Continued

Administrative Office of the United States

Courts, Report on Applications for Or-

ders Authorizing or Approving the In-

terception of Wire or Oral Communica-

tions for the Period January 1, 1975 to

December 31, 1975 (1976) -....200.0.00002.-.

Administrative Office of the United States

Courts, Report on Applications for Or-

ders Authorizing or Approving the In-

terception of Wire or Oral Communica-

tions for the Period January 1, 1976 to

December 31, 1976 (1977) ~....2---2022222---

Administrative Office of the United States

Courts, Report on Applications for Or-

ders Authorizing or Approving the In-

terception of Wire or Oral Communica-

tions for the Period January 1, 1977 to

December 31, 1977 (1978) ........-2-.--.----

Anti-Crime Program: Hearings on H.R.

5037, etc. Before the Subcomm. No. 5

of the House Comm. on the Judiciary,

90th Cong., lst Sess. (1967) 0.000000...

113 Cong. Rec. 18007 (1967)...

114 Cong. Rec. (1968) :

pe. 14709-14710

pp. 14782-14784...

Page

Vill

Miscellaneous—Continued

Blakey, Aspects of the Evidence Gather-

ing Process in Organized Crime Cases

reprinted in the President’s Commis-

sion on Law Enforcement and Admin-

istration of Justice, Task Force Report:

Organized Crime (1967) -.......---.-----.----

Blakey, The Rule of Announcement and

Unlawful Entry: Miller v. United

States and Ker v. California, 112 U.

OP A SS, ee

Controlling Crime Through More Effec-

tive Law Enforcement: Hearings on

S. 300, etc. Before the Subcomm. on

Criminal Laws and Procedures of the

Senate Comm. on the Judiciary, 90th

Oe SS EE Ea

Hearings on Invasions of Privucy Before

the Subcomm. on Administratwe Prac-

tice and Procedure of the Senate Comm.

on the Judiciary, 89th Cong., 2d Sess.

CEI ssn cncicscinsesiiiiadeenbiisgiiiicigiaiadasassttetiainitaidomenin

McNamara, The Problem of Surreptitious

Entry to Effectuate Electronic Eaves-

drops: How Do You Proceed After the

Court Says “Yes”?, 15 Am. Crim. L.

SE: ee

National Commission for the Review of

Federal and State Laws Relating to

Wiretapping and Electronic Surveil-

lance, Commission Studies, State of the

Art of Electronic Surveillance (1976)..

Note, The Supreme Court, 1967 Term, 82

Harv. L. Rev. 68 (1968)......................

Page

35-36

30, 31

38, 41

Miscellaneous—Continued Page

Report of the National Commission for

the Review of Federal and State Laws

Relating to Wiretapping and Electronic

Surveillance (Electronic Surveillance)

0 SRST ne Oe ae 44, 45, 46

S. 675, 90th Cong., Ist Sess. (1967) ........ 40

S. 2050, 90th Cong., 1st Sess. (1967) .... 40, 41

S. Rep. No. 1097, 90th Cong., 2d Sess.

RINE ssiccieethiianiaienadiitah ladies aie .38, 39, 40, 41

S. Rep. No. 95-601, 95th Cong., 2d Sess.

RUINED ‘suissnshihieieiehthidiatibiiptbibisinaieneectatenaabinimans 53

T. Taylor, Two Studies in Constitutional

Interpretation (1969) 0.00.00. 28

Iu the Supreme Conc of the Wuited States

OCTOBER TERM, 1978

No. 77-1722

LAWRENCE DALIA, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

8a) is reported at 575 F.2d 1344. The opinion of

the district court (excerpted at Pet. App. 10a-18a)

is reported at 426 F. Supp. 862.

JURISDICTION

The judgment of the court of appeals (Pet. App.

8a-9a) was entered on May 3, 1978. The petition for

(1)

a writ of certiorari was filed on June 2, 1978, and

was granted on October 2, 1978, limited to Question

One of the petition (Pet. 2). The jurisdiction of this

Court rests upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether federal law enforcement agents, in exe-

cuting a valid court order authorizing the intercep-

tion of oral communications at specified business

premises, may enter those premises surreptitiously

and without express judicial approval to install the

device used to make the authorized interceptions.

STATUTE AND RULE INVOLVED

18 U.S.C. 2518 provides in pertinent part:

(1) Each application for an order authorizing

or approving the interception of a wire or oral

communication shall be made in writing upon

oath or affirmation to a judge of competent

jurisdiction and shall state the applicant’s au-

thority to make such application. Each applica-

tion shall include the following information:

(a) the identity of the investigative or law

enforcement officer making the application, and

the officer authorizing the application;

(b) a full and complete statement of the facts

and circumstances relied upon by the applicant,

to justify his belief that an order should be is-

sued, including (i) details as to the particular

offense that has been, is being, or is about to be

committed, (ii) a particular description of the

nature and location of the facilities from which

or the place where the communication is to be

intercepted, (iii) a particular description of the

type of communications sought to be intercepted,

(iv) the identity of the person, if known, com-

mitting the offense and whose communications

are to be intercepted;

whether or not other investigative procedures

have been tried and failed or why they reason-

ably appear to be unlikely to succeed if tried

or to be too dangerous;

(d) a statement of the period of time for

which the interception is required to be main-

tained. If the nature of the investigation is such

that the authorization for interception should

not automatically terminate when the described

type of communication has been first obtained,

a particular description of facts establishing

probable cause to believe that additional com-

munications of the same type will occur there-

after;

(e) a full and complete statement of the facts

concerning all previous applications known to

the individual authorizing and making the ap-

plication, made to any judge for authorization

to intercept, or for approval of interceptions of,

wire or oral communications involving any of

the same persons, facilities or places specified in

the application, and the action taken by the

judge on each such application; and

(f) where the application is for the extension

of an order, a statement setting forth the re-

sults thus far obtained from the interception, or

a reasonable explanation of the failure to obtain

such results.

(2) The judge may require the applicant to

furnish additional testimony or documentary evi-

dence in support of the application.

(3) Upon such application the judge may

enter an ex parte order, as requested or as modi-

fied, authorizing or approving interception of

wire or oral communications within the terri-

torial jurisdiction of the court in which the judge

is sitting, if the judge determines on the basis

of the facts submitted by the applicant that—

(a) there is probable cause for belief that an

individual is committing, has committed, or is

about to commit a particular offense enumerated

in section 2516 of this chapter;

(b) there is probable cause for belief that

particular communications concerning that of-

fense will be obtained through such interception ;

tried and have failed or reasonably appear to be

unlikely to succeed if tried or to be too dan-

gerous;

(d) there is probable cause for belief that the

facilities from which, or the place where, the

wire or oral communications are to be inter-

cepted are being used, or are about to be used, in

connection with the commission of such offense,

or are leased to, listed in the name of, or com-

monly used by such person.

(4) Each order authorizing or approving the

interception of any wire or oral communication

shall specify—

(a) the identity of the person, if known,

whose communications are to be intercepted;

(b) the nature and location of the communi-

cations facilities as to which, or the place where,

authority to intercept is granted;

communication sought to be intercepted, and a

statement of the particular offense to which it

relates;

(d) the identity of the agency authorized to

intercept the communications, and of the person

authorizing the application; and

(e) the period of time during which such in-

terception is authorized, including a statement

as to whether or not the interception shall auto-

matically terminate when the described com

munication has been first obtained.

An order authorizing the interception of a wire

or oral communication shall, upon request of the

applicant, direct that a communication common

carrier, landlord, custodian or other person shall

furnish the applicant forthwith all information,

facilities, and technical assistance necessary to

accomplish the interception unobtrusively and

with a minimum of interference with the serv-

ices that such carrier, landlord, custodian, or

person is according the person whose communi-

cations are to be intercepted. Any communica-

tion common carrier, landlord, custodian or

other person furnishing such facilities or tech-

nical assistance shall be compensated therefor

by the applicant at the prevailing rates.

Rule 41 of the Federal Rules of Criminal Proce-

dure provides, in pertinent part:

(b) Property Which May Be Seized With a

Warrant. A warrant may be issued under this

rule to search for and seize any (1) property

that constitutes evidence of the commission of a

criminal offense; or (2) contraband, the fruits

of crime, or things otherwise criminally pos-

sessed; or (3) property designed or intended for

use or which is or has been used as the means of

committing a criminal offense.

* * * * *

(d) Execution and Return with Inventory.

The officer taking property under the warrant

shall give to the person from whom or from

whose premises the property was taken a copy

of the warrant and a receipt for the property

taken or shall leave the copy and receipt at the

place from which the property was taken. The

return shall be made promptly and shall be ac-

companied by a written inventory of any prop-

erty taken. The inventory shall be made in the

presence of the applicant for the warrant and

the person from whose possession or premises the

property was taken, if they are present, or in the

presence of at least one credible person other than

the applicant for the warrant or the person from

whose possession or premises the property was

taken, and shall be verified by the officer. The

federal magistrate shall upon request deliver a

copy of the inventory to the person from whom

or from whose premises the property was taken

and to the applicant for the warrant.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the District of New Jersey, petitioner

was convicted of receiving goods stolen from an in-

terstate shipment, in violation of 18 U.S.C. 2315, and

of conspiracy to transport, receive, and possess the

goods, in violation of 18 U.S.C. 371. He was sen-

tenced to concurrent terms of five years’ imprison-

ment. The court of appeals affirmed (Pet. App. 1a-

8a).

1. On March 27, 1973, Joseph Palase, a member

of a group of fabric thieves, asked petitioner if he

could store “a load of merchandise” on petitioner’s

business premises in Linden, New Jersey (Tr. 1.64-

1.65, 2.65-2.69, 2.87-2.88). Petitioner refused this

request because on a previous occasion he had been

angered about the way the transaction had been

handled and about the fact that he had been paid

only $300 to store the merchandise (Tr. 3.140-3.141,

3.167-3.172, 4.54-4.60, 4.73-4.75). Instead, petitioner

arranged for another associate, Joseph Higgins, to

store the stolen goods (Tr. 2.65-2.69, 2.87-2.89, 3.135-

3.139, 3.157-3.158). Higgins and petitioner agreed to

divide the $1,500 fee they expected to receive for

concealing the merchandise (Tr. 2.60-2.62, 3.139,

3.158, 3.162-3.163).

On April 3, 1973, co-defendant Daniel Rizzo and

two other men hijacked a Farah Manufacturing Com-

pany tractor-trailer in Brooklyn, New York. The

truck was carrying 664 rolls of polyester fabric val-

ued at approximately $250,000 (Pet. App. 2a; Tr.

3.68-3.77, 3.88-3.91, 4.64-4.70). Later that day, the

fabric was unloaded at Higgins’ warehouse in Wood-

bridge, New Jersey (Tr. 1.70-1.73). The truck was

then abandoned on Staten Island (Tr. 1.73, 2.21-2.22).

Two days later, FBI agents arrested Higgins, Palase,

and three other persons at Higgins’ warehouse as

they were loading the stolen rolls of fabric onto two

U-Haul trucks (Tr. 1.77-1.88, 1.90-1.91, 2.29-2.30,

3.163-3.166).

2. At trial, the government introduced tape re-

cordings of 13 telephone conversations to which peti-

tioner was a party and eight conversations that took

place in his office. The telephone conversations (the

admissibility of which is not challenged here) were

intercepted pursuant to court orders entered on

March 14, 1973, and April 5, 1973.* They included

the conversation in which petitioner arrangeu with

Higgins to let the fabric thieves store their booty at

Higgins’ warehouse (Tr. 2.60-2.62), conversations

between petitioner and Palase regarding the storage

arrangement (Tr. 2.65-2.69, 2.75-2.81, 2.87-2.88,

2.90, 2.92-2.93), and conversations in which peti-

tioner was informed of the arrests and advised others

who had not been arrested to “sit tight” and not to

use the telephone (Tr. 2.97-2.99, 2.100-2.102).

The recordings of the eight conversations in peti-

tioner’s office that were admitted at trial were inter-

1 The two wire interception orders were entered pursuant

to Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. 2510-2520. The first order authorized

wire interceptions for a period of 20 days, and the second

order extended the authorization for an additional 20 days

(Pet. App. 2a-3a; A. 6a-10a). A third wire interception order

was entered on April 27, 1973, extending the authorization

for an additional 20 days (A. lla-15a), but no conversations

intercepted under the authority of that order were introduced

at trial. All three orders were entered by Judge Frederick

B. Lacey, who also presided at petitioner’s trial.

cepted pursuant to the court order of April 5, 1973.7

In the course of those conversations, all of which took

place after Higgins and the fabric thieves had been

arrested, petitioner discussed the arrests, speculated

that someone had “put the finger” on Higgins, and

made statements reflecting his involvement in the

fabric storage operation and in other schemes involv-

ing the storage of stolen property (see, e.g., Tr. 3.63,

3.80-3.86, 3.100, 3.182-3.184).

3. The government’s application for authorization

to conduct oral interceptions included an affidavit by

FBI Agent Douglas L. Hokenstad, who was then in

charge of the investigation. The affidavit provided an

extensive account of the investigation of petitioner’s

on-going dealings in stolen goods and set forth rea-

sons to believe that petitioner used his office on a

regular basis to discuss the sale of stolen goods

(Hokenstad Affidavit, attached to application for

April 5, 1973, order).

On the basis of the application and the affidavit,

the district court entered the April 5 order authoriz-

* The April 5 order that authorized the continuation of the

wire interceptions also provided the initial authorization for

the interception of oral communications in petitioner’s office

(A. 8a). This authorization was extended on April 27 (A. 11la-

15a), but no conversations intercepted pursuant to that exten-

sion order were admitted at trial. Six of the eight conversa-

tions overheard by means of the devices placed in petitioner’s

office and admitted in evidence at trial took place on April 6,

the day after the arrests (Tr. 3.63-3.64, 3.78-3.86, 3.98-3.100,

3.101-3.102, 3.103-3.105, 3.175-3.186), one took place on April

9 (Tr. 4.73-4.75), and the last took place on April 17 (Tr.

4.93-4.94).

ing the initiation of interception of oral communica-

tions and the continued interception of wire com-

munications (A. 6a-10a). The court found probable

cause to believe that petitioner and others were en-

gaged in thefts from interstate shipments, sale or

receipt of stolen goods, interference with commerce

by threats or violence, and conspiracy (A. 6a). The

court further found that there was probable cause to

believe that the authorized wire and oral communica-

tions would provide evidence concerning these offenses

and that normal investigative methods appeared un-

likely to succeed and were too dangerous (A. 7a).

In particular, the court found that petitioner’s office

“lwas] being used, and is being used by [petitioner]

and others as yet unknown in connection with the

commission of the above-described offenses” (ibid.).

Accordingly, the April 5 order authorized FBI

agents to intercept oral communications in petition-

er’s office, which was specifically identified as the

15- by 18-foot room in the northwest corner of the

one-story building that housed his business operation

(A. 8a). The order provided that the authorization

to intercept both oral and wire communications “shall

be executed as soon as practicable after signing of

this Order and shall be conducted in such a way as

to minimize. the interception of communications not

otherwise subject to interception * * *” (A. 9a). The

order did not otherwise specify the manner of execu-

tion, except to provide that the New Jersey Bell

Telephone Company should furnish all information,

facilities and technical assistance necessary to ac-

- ae

complish the wire interception unobtrusively (A. 9a).

The order contained no explicit authorization for

agents to enter petitioner’s place of business to install

the listening device necessary to intercept the oral

communications.

At about midnight on the night of April 5-6, FBI

agents secretly entered petitioner’s office for the pur-

pose of installing an electronic listening device (A.

3la-32a). The agents entered the building through

an open side window; after determining that the

building was empty, they went to petitioner’s office,

where they installed the listening device in the acous-

tical tiles in the ceiling directly above petitioner’s

desk (A. 3la-32a, 36a-39a; Exhibit A, attached to

Gov’t C.A. Br. at 3, 6, 9). The installation and

testing procedure took about two to three hours

(A. 39a-40a). The agents seized no evidence while

they were in the building (A. 32a).

The listening device functioned without need for

adjustment throughout the period for which the oral

interceptions were authorized, and between the date

of installation and the date of removal the agents

made no entries onto the premises (A. 32a, 42a).

On May 16, 1973, all electronic surveillance ended.

That night, FBI agents re-entered the building

through the same window and removed the listening

device (A. 36a, 40a-41a).

4. Prior to trial, petitioner moved to suppress the

evidence obtained by means of the e'ectronic surveil-

lance. Among the grounds urged for suppression was

that the agents lacked authority to make the sur-

reptitious entries into petitioner’s office to install and

remove the listening device (Tr. 1.3-1.12). The dis-

trict court denied the motion without prejudice to

renewal at the close of trial (Tr. 1.17).

After trial, the court held an evidentiary hearing

on petitioner’s motion. Following the hearing, the

court denied the motion, finding that the entry into

petitioner’s business premises was the safest and

most successful method of installing the listening

device needed to accomplish the interception (Pet.

App. 17a). In most cases, the court observed, “the

only form of installing such devices is through break-

ing and entering. The nature of the act is such that

entry must be surreptitious and must not arouse

suspicion, and the installation must be done without

the knowledge of the residents or occupants” (id. at

17a-18a). Accordingly, the court held that once a

showing of probable cause is made to support the

issuance of a court order authorizing the interception

of oral communications, “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” (id. at 18a).

5. The court of appeals affirmed (Pet. App. 1la-

8a). It accepted Judge Lacey’s finding that sur-

reptitious entry was the most effective means for

installing the listening device as well as his findings

that the installation was based on probable cause and

was executed in a reasonable fashion (id. at 7a). In

these circumstances, the court held, neither Title III

nor the Fourth Amendment required express authori-

zation for the entry beyond that provided by the au-

thorization for the interception itself. The court

noted, however, that it was not adopting a rule that

specific authorization for a surreptitious entry would

never be required and stated that in the future it

would be preferable for government agents to include

a statement regarding the need for such an entry

when a break-in is contemplated (ibid.). But on the

facts of this case, the court held that the agents’

failure to include a specific entry provision in their

request for authorization to conduct an interception

of oral communications did not result in a constitu-

tional or statutory violation and did not require sup-

pression of the intercepted conversations.

SUMMARY OF ARGUMENT

The intercepted oral communications that were

introduced at trial in this case were seized pursuant

to a surveillance order entered by the district court

under the authority of Title III of the Omnibus

Crime Control and Safe Streets Act of 1968. The

order specified the location at which the interceptions

were to take place, the persons whose conversations

were to be intercepted, and the offenses for which the

investigation was being conducted. The order did

not, however, specify the mode by which the FBI

agents conducting the investigation should install the

listening device necessary to execute the surveillance

order. Petitioner challenges the admission of the re-

cordings of oral communications in his office on three

grounds: first, that the Constitution does not em-

power courts to authorize law enforcement officers

to make surreptitious entries to install electronic sur-

veillance equipment under any circumstances; second,

that courts have no statutory authority to permit

officers to make such entries; and third, that because

the surveillance order did not contain express au-

thorization for a surreptitious entry, the entry in

this case—and the resulting interceptions of petition-

er’s conversations—violated the Fourth Amendment.

1. The Fourth Amendment contains no absolute

prohibition against surreptitious entries. A forcible

entry onto private property is plainly permissible in

executing a search warrant; a court-authorized

search does not depend on the acquiescence of the

owner or occupant of the property to be searched.

Thus, petitioner’s broadside constitutional attack on

surreptitious entries made to execute a surveillance

order must be an objection to the surreptitious nature

of the entry, that is, to the lack of prior or contem-

poraneous notice to the owner or occupant of the

premises. But prior notice of entry is not constitu-

tionally required in the context of electronic surveil-

lance. To give notice of entry to install electronic

eavesdropping equipment would plainly destroy the

purpose of the search: to obtain incriminating con-

versations without the speaker’s awareness that they

are being recorded. This Court has clearly indicated

that electronic eavesdropping is not unconstitutional

if properly authorized by a court, and Title III pro-

vides a constitutionally permissible scheme of court

authorization for that form of investigation. Thus,

even if the Constitution imposes a requirement that

police give notice before entering a home to execute

a conventional search warrant, that constitutional

principle has no application to entries made to exe-

cute a court’s surveillance order, particularly when

the building entered is not a private home, but an

unoccupied business office.

2. The statutory authority for the entry to install

electronic eavesdropping equipment is furnished by

Rule 41 of the Federal Rules of Criminal Procedure.

That rule provides for the seizure of property of

various kinds, and it implicitly authorizes law en-

forcement agents to enter private premises where

necessary to search for and seize such property.

Nothing in Title III suggests that Congress intended

to restrict the authority granted under Rule 41 to

enter private premises to execute a court order. In

fact, the legislative history of Title III plainly indi-

cates that Congress was aware that surreptitious

entries onto private premises would be necessary to

conduct electronic eavesdropping in many cases. Ac-

cordingly, the general statutory authority to enter

private premises granted by Rule 41 applies in the

case of entries to conduct electronic surveillance as

well as in the case of more conventional searches.

3. Although the surveillance order in this case did

not contain any express authorization for the sur-

reptiti.s entry, no such authorization is required

either oy Title III or by the Fourth Amendment.

While Title III contains detailed requirements re-

specting what must be shown to obtain a surveillance

order, it is silent regarding the mode of entry to

execute an order issued under its provisions. Thus

Title III nowhere, expressly or by implication, re-

quires that a court authorizing electronic surveillance

specifically describe the means by which the surveil-

lance will be carried out, including an authorization

of surreptitious entries if that is necessary.

The Fourth Amendment also does not require ex-

press prior authorization of the method used to ex-

ecute the surveillance order. The protections of the

Fourth Amendment against unreasonable searches

and seizures apply, of course, to the methods used by

law enforcement agents to carry out court-authorized

electronic surveillance. But in this case there is no

doubt that the use of a covert entry to install the

listening device was a constitutionally reasonable pro-

cedure. Both courts below found that it was the

only feasible means of executing the eavesdropping

order, and petitioner does not challenge those findings.

Since the action of the agents was reasonable,

petitioner can prevail only if the Fourth Amendment

bars all entries, no matter how necessary or reason-

able, in the absence of e: »ress advance judicial au-

thorization. We contend that a court issuing a war-

rant need not specify the manner in which a search

is to be conducted. Instead, the lawfulness of the

means used to execute a warrant should be deter-

mined by a subsequent evaluation of the reasonable-

ness of the agents’ actions. In circumstances such as

those of this case, where the need for a surreptitious

entry was evident at the time the court considered

the application and authorized the eavesdropping, we

submit that the issuance of the order constituted im-

plicit authorization of the covert entry necessary to

carry it out.

Our analysis is supported by examination of the

rules governing conventional searches. Under the

Fourth Amendment’s Warrant Clause, warrants au-

thorizing such searches must particularly describe

the place to be searched and the things to be seized.

But neither the text of the Amendment nor tradi-

tional practice requires any separate, express author-

ization of the particular means to be used to execute

the warrant, including any forcible entry into private

premises that may be required. Rather, the authori-

zation to wiake an entry is implicit in the authoriza-

tion to conduct the search. The manner of entry is

subject to constitutional inquiry for reasonableness,

but that inquiry focuses upon the particule means

employed, not upon the content of the warrant.

Of course, the warrant procedure can be used to

provide advance protection against unreasonable

methods of executing a search if the court or magis-

trate so chooses. The judicial officer has the power to

inquire into the means to be employed to carry out

the search and to impose such restrictions thereon as

he deems appropriate. In the present case, where it

was evident from the application that a covert entry

was likely to be essential to install the listening de-

vice, no such restrictions were deemed necessary, and

none was imposed.

We acknowledge that it is ordinarily preferable for

the agents to seek and the court to give express au-

thorization for any covert entry necessary to execute

an electronic surveillance order. The Department of

Justice has modified its procedures so that express

authorization is now sought whenever a covert entry

will be necessary. But the procedure employed in this

case violated neither statutory nor constitutional re-

quirements, and there is accordingly no occasion to

suppress the conversations intercepted and used in

evidence at petitioner’s trial.

ARGUMENT

THE FOURTH AMENDMENT DOES NOT PROHIBIT

COURT-AUTHORIZED SURREPTITIOUS ENTRIES

TO INSTALL ELECTRONIC EAVESDROPPING DE-

VICES

Petitioner argues (Br. 19-24) that the Fourth

Amendment prohibits law enforcement agents from

making surreptitious entries onto private property

to install eavesdropping devices, even if the entries

are made pursuant to court authorization. This con-

tention has been rejected by every court of appeals

that has ruled on it,’ and it is inconsistent with this

* In addition to the court of appeals in this case, the courts

of appeals for the Second, Fourth, and Eighth Circuits have

held that the Constitution does not impose an absolute ban on

surreptitious entries to install eavesdropping devices. See

United States v. Scafidi, 564 F.2d 633, 640, 642 (2d Cir.

1977), cert. denied, 436 U.S. 903 (1978); Application of

Court’s analysis of the application of the Fourth

Amendment to electronic surveillance.

It is indisputable that law enforcement agents may

break and enter private property to execute a search

warrant. Accordingly, petitioner’s attack cannot be

on the entry itself, but must be that the Fourth

Amendment absolutely bars entries conducted in a

surreptitious manner, i.e., without contemporaneous

notice to the individual whose premises are entered.

Yet in the context of electronic surveillance, prior or

contemporaneous notice would plainly destroy the

viability of the search. Since court-authorized elec-

tronic eavesdropping is constitutionally permissible,

the Fourth Amendment’s command of reasonableness

does not prohibit surreptitious entries onto private

property when such entries are necessary to install

United States, 563 F.2d 637, 643-644 (4th Cir. 1977) ; United

States v. Agrusa, 541 F.2d 690, 696-698 (8th Cir. 1976),

cert. denied, 429 U.S. 1045 (1977). Three other courts of

appeals have declined to decide whether surreptitious entries

to install eavesdropping devices are absolutely prohibited by

the Fourth Amendment it elf. See United States v. Santora,

583 F.2d 453, 463 (9th Cir. 1978) ; United States v. Finazzo,

583 F.2d 837, 850 (6th Cir. 1978) ; United States v. Ford, 553

F.2d 146, 170 (D.C. Cir. 1977). But see United States v.

Barker, 546 F.2d 940, 953 n.40 (D.C. Cir. 1976) (opinion of

Wilkey, J.) (“if a trespass is not necessary in a particular

case to effect an eavesdrop, the court need not gratuitously

authorize a surreptitious entry; but few would question a

court’s power to do so in those cases in which it is required’’).

In a brief dissent from the denial of en banc review in United

States v. Agrusa, supra, four judges of the Eighth Circuit

stated that they “entertain great doubt of the validity of a

judicial order which authorizes” surreptitious entries to in-

stall eavesdropping devices. 541 F.2d at 704.

the listening devices needed to execute a court’s

eavesdropping order.

Moreover, any constitutional requirement of notice

(a subject nowhere mentioned in the text of the

Fourth Amendment) is satisfied in this case by the

post-seizure notice afforded under Title III. The con-

tention that the Constitution absolutely prohibits de-

ferral of notice of a search or entry, even when such

deferral is indispensable to the successful execution

of the search, cannot withstand analysis.

A. Electronic Eavesdropping is Constitutionally Permis-

sible

Prior to the decision in Katz v. United States, 389

U.S. 347 (1967), this Court had held that eaves-

dropping would be deemed a “search” for Fourth

Amendment purposes only if it involved an unlawful

trespass. Silverman v. United States, 365 U.S. 505

(1961); On Lee v. United States, 343 U.S. 747

(1952); Goldman v. United States, 316 U.S. 129

(1942); Olmstead yv. United States, 277 U.S. 438

(1928). In each of these cases, the government had

used some device to overhear the defendant’s conver-

sations, but the Court held the Fourth Amendment

inapplicable unless there had been an unauthorized

physical intrusion into private premises to conduct

the eavesdropping. In none of these cases did the

police obtain a warrant to conduct the eavesdropping.*

*In Silverman the Court noted that the intrusion was “un-

authorized” (365 U.S. at 509), and it observed that the Court

had never authorized police intrusions into a home or office

Berger v. New York, 388 U.S. 41 (1967), cast

serious doubt on the continued decisiveness of the

distinction between trespassory and non-trespassory

intrusions. The Court in that case held unconstitu-

tional on its face a New York statute that permitted

non-consensual wiretapping and eavesdropping, with

or without physical intrusions. Although the New

York procedure required court authorization for elec-

tronic surveillance, the Court held that the procedure

nonetheless was inadequate in various respects to

meet Fourth Amendment standards.

Finally, in Katz v. United States, swpra, the Court

rejected the proposition that the Fourth Amendment

is inapplicable to searches not involving physical in-

trusions into private premises. Instead, the Court

held that whether electronic surveillance constitutes a

“search” depends upon reasonable expectations of

privacy with respect to the communications seized

rather than whether there has been a physical intru-

sion into an area in which the defendant has a tradi-

tional property interest.

for the purpose of eavesdropping “without [a] warrant” (id.

at 512). Similarly, in Irvine v. California, 347 U.S. 128

(1954), the Court noted that the police entries to install listen-

ing devices in the defendant’s home were trespassory because

they occurred “without a search warrant or other process”

(347 U.S. at 132). In Goldman, Mr. Justice Murphy dissented

on the ground that the eavesdropping in that case constituted

a search, but he expressly noted that a warrant could have

been devised to permit that kind of intrusion. 316 U.S. at 140

& n.7. See also On Lee v. United States, supra, 343 U.S. at

765-767 (Burton, J., dissenting) ; Lopez v. United States, 373

U.S. 427, 464 (1963) (Brennan, J., dissenting).

The agents in Katz attached a listening device to

the outside of a telephone booth the defendant was

using and thereby overheard his portion of several

incriminating telephone conversations. Under the

Fourth Amendment analysis adopted by the Court

in Katz, the evidence obtained from the use of the

listening device was thus the product of a search.

Significantly, however, the Court did not rule that

evidence obtained by an eavesdropping “search” is

always inadmissible. Instead, it held that the evi-

dence had to be suppressed solely because the law

enforcement agents had not obtained court authoriza-

tion for the eavesdropping. 389 U.S. at 356-357, 359.

Citing its decisions in Osborn v. United States, 385

U.S. 323 (1966), and Berger v. New York,

supra, the Court ruled that properly authorized

electronic surveillance would be permissible. 389 U.S.

at 355-356. Indeed, it specifically stated that the sur-

veillance of Katz’s conversations would have been

lawful if judicial authorization for the surveillance

had been obtained. 389 U.S. at 354.

B. Title III Provides a Scheme for Electronic Eaves-

dropping that Meets Constitutional Standards

Following this Court’s decisions in Berger and

Katz, Congress enacted the Omnibus Crime Control

and Safe Streets Act of 1968, Pub. L. No. 90-351,

82 Stat. 197. Title III of that Act establishes a de-

tailed scheme for judicial authorization of intercep-

tions of wire and oral communications. The provi-

sions closely track this Court’s analysis in Berger

in an effort to overcome the various constitutional

infirmities that the Court had found in the New York

electronic surveillance statute. See Scott v. United

States, 486 U.S. 128, 130 (1978); United States v.

United States District Court, 407 U.S. 297, 302

(1972).

Title III satisfies each of the constitutional objec-

tions that the Court had raised with respect to the

New York statute. The statute permits interception

of wire and oral communications only in limited cir-

cumstances and only pursuant to court authorization.

See 18 U.S.C. 2511. Authorization may be granted

only upon a detailed showing and a finding by the

court that there is probable cause to believe that an

individual is engaged in one of the offenses for which

electronic surveillance is permitted (18 U.S.C. 2518

(3) (a)), that particular communications concerning

that offense will be obtained through the interception

(18 U.S.C. 2518(3) (b)), and that the wire or loca-

tion at which the interception is to take place is

being used in connection with the commission of the

offense (18 U.S.C. 2518(3)(d)).° The statute also

requires that the interception order identify with

particularity the persons, if known, whose communi-

cations are to be intercepted (18 U.S.C. 2518(4)

(a)), describe the facilities or place as to which the

authority to intercept is being granted (18 U.S.C.

2518(4) (b)), and specify the type of communication

* These stringent probable cause requirements meet the

Court’s concern that the New York statute’s “reasonable

cause” standard was too lax. See 388 U.S. at 54-55.

being sought and the offense to which it relates (18

U.S.C. 2518(4) (c)).”

The statute further requires that the officers ex-

_ ecute the order quickly, maintain the interception for

only a limited period sf time, and make a timely re-

turn on the eavesdropping order showing what was

seized. 18 U.S.C. 2518(5), 2518(8)(a)." Moreover,

the statute requires a showing by the applicant and

a finding by the court that other investigative meth-

ods have been tried and have failed or reasonably

appear to be unlikely to succeed or too dangerous to

attempt. 18 U.S.C. 2518(1) (c), 2518(3) (¢c).*

Finally, the statute provides that the persons

named in the order shall be served with an inventory

within a reasonable time after the interception is

authorized, giving notice of the order or application,

the disposition of the application, and whether com-

munications were intercepted. 18 U.S.C. 2518(8) (d).

See United States v. Donovan, 429 U.S. 413, 428-

432 (1977).

* These provisions are responsive to the Court’s objection

that the New York procedure contained noe requirement that

the place to be searched and the things to be seized be par-

ticularly described. See 388 U.S. at 56-59.

* The New York statute was criticized for its failure to con-

tain any such provisions. 388 U.S. at 59-60.

*This provision was designed to respond to the Court’s

observation that the New York statute permitted “uncon.

sented entry without any showing of exigent circumstances.”

388 U.S. at 60.

* This provision was addressed to the Court’s observation

that the New York statute contained no provision for notice

to the person whose communications were overheard. 388 .

US. at 60.

In light of the close controls imposed by tht stat-

ute and its careful attention to the constitutional

concerns voiced by the Court in Berger, every court

of appeals that has ruled on the issue has held that

Title III is constitutional. See, e.g., United States v.

Turner, 528 F.2d 148, 158-159 (9th Cir. 1975);

United States v. Sklaroff, 506 F.2d 887, 840 (5th Cir.

1975) ; United States v. Ramsey, 503 F.2d 524, 526

(7th Cir. 1974), cert. denied, 420 U.S. 9382 (1975);

United States v. O’Neill, 497 F.2d 1020, 1026 (6th

Cir. 1974); United States v. James, 494 F.2d 1007,

1013 (D.C. Cir.), cert. denied, 419 U.S. 1020 (1974) ;

United States v. Tortorello, 480 F.2d 764, 775 (2d

Cir.), cert. denied, 414 U.S. 866 (1973); United

States v. Bobo, 477 F.2d 974, 981 (4th Cir. 1973);

United States v. Cafero, 473 F.2d 489, 495-500 (3d

Cir. 1973), cert. denied, 417 U.S. 918 (1974) ; United

States v. Cox, 462 F.2d 1293 (8th Cir. 1972); Cox

v. United States, 449 F.2d 679 (10th Cir. 1971).”

* This Court has never held that Title III is constitutional

on its face, see United States v. Kahn, 415 U.S. 143, 150

(1974) ; United States v. United States District Court, 407

U.S. 297, 308 (1972), but on several occasions it has upheld

the admission of evidence obtained under the authority of

Title III despite constitutional challenge. See Scott v. United

States, supra; United States v. Donovan, 429 U.S. 413 (1977) ;

United States v. Chavez, 416 U.S. 562 (1974) ; United States

v. Kahn, supra. Cf. Nixon v. Administrator of General Serv-

ices, 4833 U.S. 425, 463-465 (1977).

C. The Fourth Amendment Permits Surreptitious En-

tries to Execute Eavesdropping Orders Issued In

Compliance with Title II

Although petitioner acknowledges that Title III is

“a careful response to the Berger and Katz holdings”

(Br. 22), he contends that the statute fails to satisfy

the constitutional objections raised in Berger in one

critical respect. According to petitioner (Br. 23),

Title III improperly permits unconsented entry with-

out notice or a showing of exigency, a point that the

Court noted in Berger as one of the infirmities of the

New York statute. 388 U.S. at 60.

_ Petitioner’s objection to the lack of prior or con-

temporaneous notice is disposed of by Katz v. United

States, supra, and United States v. Donovan, supra.

In Katz, the Court stated that the reasons for re-

quiring notice prior to an entry or a seizure of evi-

dence have no bearing in the context of electronic

srveillance. 389 U.S. at 355 n.16. In the case of

judicially authorized electronic surveillance, the court

observed, the purposes that generally underlie the re-

quirement of notice—avoiding the shock of unan-

nounced police intrusion into the home and minimiz-

ing the danger to the police of an unannounced

entry—do not apply. Jbid. The Court made the same

point in Donovan, this time with express reference

to Title III. Citing the portion of Berger on which

petitioner relies and the portion of Katz referred to

above, the Court held that the notice and return

provisions in Title III, 18 U.S.C. 2518(8) (a), “sat-

isfy constitutional requirements.” United States v.

Donovan, supra, 429 U.S. at 429 n.19. The statute

ensures that notice of the interceptions will be pro-

vided; it simply postpones the notice until after the

interception.

Petitioner’s objection that the statute lacks an ade-

quate requirement that exigency be shown is also

without merit. Title III expressly requires a show-

ing of exigency before a wire or oral interception

may be authorized. See 18 U.S.C. 2518(1)(c), 2518

(3)(c). Prior to approving any electronic surveil-

lance, the court must find that other investigative

methods have been tried and have failed or are im-

practicable. These statutory provisions have uni-

formly been held to satisfy the objection in Berger

that the New York statute permitted “unconsented

entry without any showing of exigent circumstances”

(388 U.S. at 60). See, e.g., United States v. Sklar-

off, supra, 506 F.2d at 840; United States v. Bobo

supra, 477 F.2d at 982; United States v. Cafero, ow

pra, 473 F.2d at 498-501.

The broader contention that the Fourth Amendment

does not permit entries onto private property to in-

stall eavesdropping devices under any circumstances

1S inconsistent with the Court’s analysis in Katz,

Osborn, and Berger, and with well-settled principles

governing the execution of search warrants generally.

Although the surveillance in Katz and Osborn did

not involve physical trespasses, the rationale of those

cases suggests that there should be no distinction for

Fourth Amendment purposes between an intrusion by

electronic surveillance from outside the physical

premises in question and electronic surveillance that

involves an unconsented entry. The Court implicitly

recognized this point in Alderman v. United States,

394 U.S. 165 (1969), when it observed that under

the principles of Silverman and Katz, officers cannot

enter a house to install a listening device if the in-

trusion is not made pursuant to a valid warrant.

See also T. Taylor, Two Studies in Constitutional

Interpretation 114 (1969).

Moreover, Berger itself involved a surreptitious

entry to install an eavesdropping device, and the

Court’s opinion nowhere suggested that the intrusion

to install the device was per se unreasonable. Instead,

the Court held only that the New York warrant pro-

cedure was too broad to permit “a trespassory in-

trusion into a constitutionally protected area’ (388

U.S. at 44). The Court was careful to point out that

eavesdropping can be constitutionally permissible

“under specific conditions and circumstances” (388

U.S. at 63). The Fourth Amendment, the Court ob-

served, does not make the home or the office sanctu-

aries where the law can never reach, “but it does

prescribe a constitutional standard that must be met

before official invasion is permissible” (388 U.S. at

64).”

™ Three members of the Court in Berger would have upheld

the court-authorized intrusion and interception in that case.

See 388 U.S. at 81 (Black, J., dissenting) ; id. at 94 (Harian,

J., dissenting) ; id. at 112 (White, J., dissenting). Mr. Justice

Stewart, who concurred on a narrow ground, would not have

struck down the New York statute, but, like the three dis-

senters, would have held that electronic eavesdropping under

the authority of the New York statute would be constitutional

The law governing the execution of conventional

search warrants is in accordance with this analysis.

The courts have uniformly held that entries into un-

occupied premises to undertake otherwise permissible

searches are constitutional. United States v. Brown,

556 F.2d 304, 305 (5th Cir. 1977); United States v.

Agrusa, supra, 541 F.2d at 698; Payne v. United

States, 508 F.2d 1391, 1393-1394 (5th Cir.), cert.

denied, 423 U.S. 983 (1975); United States v. Ger-

vato, 474 F.2d 40 (3d Cir.), cer. denied, 414 U.S.

846 (1973).”

Although this Court has never expressly held that

entries into unoccupied premise:, are constitutional,

the Court’s Fourth Amendmen: decisions are con-

sistent with this principle. Jn numerous occas-

ions when the Court has hele that a warrant was

required in order to make a ° alid search, the prem-

ises in question were vacant or the property unat-

tended, either because of the arrest of the defendant

if an adequate showing of proba>le cause were made. Id. at

68 (Stewart, J. concurring in th» result). Only Mr. Justice

Douglas would have held electron: eavesdropping impermis-

sible in all cases. Jd. at 67 (Douglas J., concurring).

* The rule ‘n the state courts is he same. See, e.g., State

v. Gutierrez, 91 N.M. 542, 577 P.2d 410, 447-448 (1978) ; Hart

v. Superior Court, 21 Cal. App. 3d 46, 502-504, 98 Cal. Rptr.

565, 569-571 (1971); State v. Calvert, 219 Tenn. 534, 410

S.W.2d 907 (1966) ; State v. Williams, 250 La. 64, 198 So. 2d

787 (1967); Outlaw v. State, 208 Miss. 18, 48 So. 2d 661

(1949); State v. Robineon, 354 Mo. 74, 188 S.W. 2d 664

(1945); Thigpen v. State, 51 Okla. Crim. 28, 299 P. 230

(1931) ; People v. Law, 55 Misc. 2d 1075 287 N.Y.S. 2d 565

(1968) ; People v. Johnson, 231 N.Y.S. 2d 689 (Sup. Ct. 1962) ;

State v. Dropolski, 100 Vt. 259, 186 A. 835 (1927).

or for some other reason.” See, e.g., Mincey v. Ari-

zona, No. 77-5353 (June 21, 1978); Michigan v.

Tyler, 436 U.S. 499 (1978); Chapman v. United

States, 365 U.S. 610, 615 (1961); Agnello v. United

States, 269 U.S. 20, 32-33 (1925). While some ref-

erence to the subject could be expected if petitioner’s

proposition were correct, these decisions contain no

suggestion, explicit or implicit, that the target of the

search or someone acting on the target’s behalf would

have to be present or have prior notice for the search

to be constitutional.

Finally, even the common law rule governing en-

tries to execute search warrants does not support

petitioner’s position. At common law, government

officers executing a search warrant could not break

into a private dwelling, absent exigent circumstances,

without first announcing their identity and purpose.

See Miller v. United States, 357 U.S. 301 (1958) ;

Blakey, The Rule of Announcement and Unlawful

Entry: Miller v. United States and Ker v. California,

112 U. Pa. L. Rev. 499, 501-504 (1964). That rule has

been codified in 18 U.S.C. 3109 and has been character-

ized as having constitutional overtones. See Sabbath v.

United States, 391 U.S. 585, 591 n.8 (1968); Ker v.

California, 374 U.S. 23, 49, 53 (opinion of Brennan,

18 The Federal Rules of Criminal Procedure plainly contem-

plate that some valid warrant searches will take place when

the premises searched are unoccupied. Rule 41(d) provides

that a copy of the warrant and a receipt shall be given to the

person from whose premises the property was taken “or [left]

at the place from which the property was taken.” Similarly,

the inventory must be made in the presence of the persons

from whose premises the property was taken “if they are

present.”

J.). The common law requirement of prior notice,

however, does not aid petitioner here for several rea-

sons. First, because forms of electronic surveillance

were then unknown, the common law rule was designed

solely with reference to conventional searches for

tangible property already in existence. The costs to

law enforcement of a rule of prior notice were prop-

erly perceived as minimal in that context. In the

case of electronic surveillance, by contrast, prior no-

tice would invariably destroy the purpose of the

search. Thus, it is difficult to credit the view that

_ the common law judges would have applied the re-

quirement of prior notice if they had been faced with

the problem of court-authorized electronic surveil-

lance. Moreover, both the common law rule and 18

U.S.C. 3109 apply only to private dwellings.“ Ac-

‘*At common law, no announcement was ever required

prior to searching a building other than a home. See Penton

v. Brown, 1 Keble 699, 83 Eng. Rep. 1193 (K.B. 1664) ; Andro-

scoggin R.R. v. Richards, 41 Me. 238, 238 (1856); Blakey,

The Rule of Announcement and Unlawful Entry: Miller v.

United States and Ker v. California, supra, 112 U. Pa. L. Rev.

at 501-504. Section 3109 is similarly limited to entries into

dwellings and has no application to entries into other private

property. See United States v. Agrusa, supra, 541 F.2d at

697, 699-700 & nn.21, 22 (collecting cases) ; Fields v. United

States, 355 F.2d 543 (5th Cir.), cert. dismissed, 384 U.S.

935 (1966).

The courts have recognized an “exigent circumstances” ex-

ception to Section 3109. See, e.g., United States v. Carter,

566 F.2d 1265, 1268 (5th Cir.), cert. denied, No. 78-1326

(1978) ; United States v. Murrie, 534 F.2d 695, 698 n.1 (6th

Cir. 1976) ; United States v. Smith, 520 F.2d 74, 76-81 (D.C.

Cir. 1975); United States v. Bustamonte-Gomez, 488 F.2d

4, 11 (9th Cir. 1973), cert. denied, 416 U.S. 970 (1974). See

also Sabbath v. United States, supra, 391 U.S. at 591 n.8.

cordingly, neither the common law nor any statu-

tory or constitutional rule of prior notice applies

to the entry of this case into an unoccupied office

building, in cireumstances in which the giving of no-

tice would have been fatal to the ability to execute

the search.

DISTRICT COURTS HAVE STATUTORY POWER TO

AUTHORIZE SURREPTITIOUS ENTRIES FOR THE

PURPOSE OF INSTALLING ELECTRONIC EAVES-

DROPPING DEVICES

Petitioner contends (Br. 9-19) that, constitutional

barriers aside, the district court lacked statutory

authority to permit law enforcement officers to enter

his office surreptitiously for the purpose of installing

the electronic equipment necessary to achieve the

judicially authorized interception of his oral com-

munications. He bases this conclusion solely upon

the absence of any express mention in Title III of co-

vert entries to plant a “bug,” urging that this si-

lence on “an issue with such enormous public in-

terest and political consequences” is “powerful evi-

dence” (id. at 18) that Congress could not have in-

tended to allow such entries.

It is not surprising, however, that Title III does

not dwell on this subject. In the wake of this Court’s

decisions in Berger and Katz, which had restricted

the availability of electronic surveillance as a law

enforcement technique but had suggested that it

would be possible to construct a statutory system that

would satisfy the Fourth Amendment, Congress’s

overriding concern was the expeditious enactment

2 ee ee <r

of legislation that would authorize the search and

seizure, consistent with constitutional requirements,

of a person’s spoken words. See United States v.

United States District Court, supra, 407 U.S. at 310

n.9. Hence, as the Court recently observed in United

States v. New York Telephone Co., 434 U.S. 159, 166

(1977) (emphasis added), “Title III is concerned

only with orders ‘authorizing or approving the inter-

ception of a wire or oral communication * * *,’” not

with other, collateral types of intrusions (such as

the unconsented entry onto private premises) that

the Court had not condemned in Berger and Katz

and that were adequately covered by other statutory

provisions.

Rule 41(b) of the Federal Rules of Criminal Pro-

cedure empowers a district court to authorize law

enforcement officers to enter private premises for

the purpose of conducting a search and seizure. The

rule applies, without qualification, to the search and

seizure of both tangible and intangible objects

(United States v. New York Telephone Co., supra,

434 U.S. at 169), and petitioner has offered no reason

why it would not similarly allow the issuance of a

warrant authorizing an entry for the purpose of

planting an electronic listening device.“ See, e.g.,

** Two courts of appeals have concluded that a district court

is without statutory power to authorize an ent_y onto private

premises in order to install an electronic eavesdropping de-

vice. However, the Sixth Circuit in United States v. Finazzo,

supra, did not consider the applicability of Rule 41 (but see

583 F.2d at 582 (Celebreeze, J., concurring) (“federal district

courts gain sufficient ancillary power from Rule 41 and the All

Writs Act to order surreptitious entry to implement such in-

Silverman v. United States, supra, 365 U.S. at 512;

id. at 513 (Douglas, J., concurring) (conviction based

on trespassory electronic eavesdropping evidence must

be reversed “since no search warrant was obtained as

required by the Fourth Amendment and Rule 41

* * *). Moreover, 18 U.S.C. 3109 provides that a

law enforcement officer “may break open any outer

or inner door or window of a house * * * to execute

a search warrant” issued pursuant to lawful

authority.”

terceptions wholly apart from the power to authorize such

entry which exists in Title III itself”) ), while the Ninth Cir-

cuit in United States v. Santora, supra, found Rule 41 irrele-

vant only because “the rule does not apply to the issuance of

intercept orders” (583 F.2d at 464 n.10). This objection is

beside the point. Of course Rule 41 was not designed to

empower a court to authorize electronic surveillance; Con-

gress enacted the detailed provisions of Title III for precisely

that purpose. The fact that Rule 41 does not itself authorize

eavesdropping is no answer to the contention that the rule

permits a court to authorize a search, such as the entry to

install a listening device, that does not itself constitute an

interception of communications. Such entries are indistin-

guishable from the entries onto private property, concededly

within the scope of Rule 41, that regularly precede the search

for and seizure of books, contraband, or other tangible evi-

dence of criminal activity.

“notice of his authority and purpose,” the Court has recog-

nized, in the context of electronic surveillance, “that officers

need not announce their purpose before conducting an other-

wise authorized search if such an announcement would pro-

voke the escape of the suspect or the destruction of critical

evidence.” Katz v. United States, supra, 389 U.S. at 355 n.16.

See Berger v. New York, supra, 388 U.S. at 60; Osborn V.

United States, supra, 385 U.S. at 328-330; Ker v. California,

supra, 374 U.S. at 37-41; United States v. Agrusa, supra, 541

Fe ET NE a RT

There is not the slightest hint in either the detailed

Statutory language or the extensive legislative his-

tory of Title III that Congress intended to abrogate

this established grant of authority. To begin with

although Congress had no need to address the que.

tion of surreptitious entries in Title III, it unques-

tionably was aware during its consideration of the

statute that, while the interception of wire communi-

cations was typically accomplished by means of an

outside connection with a telephone line (see Berger

v. New York, supra, 388 U.S. at 46), electronic

eavesdropping traditionally required the secret place-

ment of a listening device in the area where the

conversations were expected to occur.

Congress was informed by both advocates and op-

ponents of electronic surveillance legislation dealing

with “bugging” that covert entries were often neces-

sary in the course of installation. For example, Pro-

fessor Blakey, who favored the enactment of legisla-

tion authorizing electronic eavesdropping and was the

principal draftsman of Title III, cautioned that “[i]t

is often difficult if not impossible to install [eaves-

dropping devices] safely where a surreptitious entry

is required. * * * Like a thief in the night, the of-

ficer must secretly enter to install the bug.” Blakey,

Aspects of the Evidence Gathering Process in Or-

F.2d at 699-701. See also 114 Cong. Rec. 13208 (i968);

McNamara, The Problem of Surreptitious Entry to Effectuate

Electronic Eavesdrops: How Do You Proceed After the

Court Says “Yes” ?, 15 Am. Crim. L. Rev. 1, 31 n.97 (1977);

poo = Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 194

ganized Crime Cases, reprinted in the President’s

Commission on Law Enforcement and Administra-

tion of Justice, Task Force Report: Organized

Crime. App. C at 92, 97 (1967). Other persons

recommended that, in light of these problems, the

proposed legislation be limited to types of electronic

surveillance that would not require a trespass. See,

e.g., Anti-Crime Program: Hearings on H.R. 5037,

etc. Before the Subcomm. No. 5 of the House Comm.

on the Judiciary, 90th Cong., 1st Sess. 937 (1967).

The congressional hearings contain repeated refer-

ences by knowledgeable witnesses to the necessity for

secret entries onto private premises in connection with

electronic eavesdropping. See, e.g., Hearings on In-

vasions of Privacy Before the Subcomm. on Ad-

ministrative Practice and Procedure of the Senate

Comm. on the Judiciary, 89th Cong., 2d Sess.

973, 997-998, 1007, 1011-1012, 1225-1226, 1249-

1250, 1252, 1517-1518, 1702, 1704-1705, 1731-1732,

1954, 2339-2340, 2379-2380 (1966).

Perhaps more important, this Court’s decisions in-

volving the “interception of oral communications,

which were studied closely by Congress and cited time

and again during the legislative hearings and floor de-

bates and in the committee reports, had alluded on a

number of occasions to the need for covert entries. See

Silverman v. United States, swpra, 365 U.S. at 510;

Lopez v. United States, supra, 373 U.S. at 467 n.15

(1963) (Brennan, J., dissenting); Irvine v. Cali-

fornia, supra, 347 U.S. at 130-132. Indeed, as we

noted earlier, the electronic eavesdropping provisions

of Title III were drafted in direct response to the

ae ee st oer.

decision in Berger v. New York, supra, which had

involved a surreptitious entry onto business premises

for the purpose of installing a listening device. 388

U.S. at 44, 45; id. at 64-65, 67 (Douglas, J., con-

curring). See United States v. United States Dis-

trict Court, supra, 407 U.S. at 302.

The legislative history is also marked by state-

ments by legislators themselves indicating recogni-

tion of the need for surreptitious entries. Senator

Morse, an opponent of Title III who feared that its

eavesdropping provisions would result in the indis-

criminate invasion of individual privacy, remarked

(114 Cong. Rec. 11598 (1968) ):

I know that elaborate efforts are made to dis-

tinguish between a real wiretap, or bug, which

requires someone to intrude upon private prem-

ises to install. That kind of invasion is truly a

search, requifing a warrant under conditions

set forth in article 4. But electronic surveillance,

whereby conversations can be picked up from

scores of feet away, without any physical intru-

sion upon the premises involved, is a far more

insidious invasion of privacy, and one which I

do not believe should be tolerated at all.

Senator Tydings, a supporter of the bill, responded

by contending that there was no reason to fear that

traditional investigative techniques would be wholly

dispensed with in favor of electronic surveillance,

partly because (114 Cong. Rec.\12989 (1968) ) :

[Electronic] surveillance is very difficult to use.

Tape [sic] must be installed on telephones, and

wires strung. Bugs are difficult to install in

many places since surreptitious entry is often

impossible. Often, more than one entry is neces-

sary to adjust equipment.

See also 114 Cong. Rec. 14709-14710, 14732-14734

(1968) ; S. Rep. No. 1097, 90th Cong., 2d Sess. 67-68,

102-103 (1968); Anti-Crime Program: Hearings on

H.R. 5037, etc. Before the Subcomm. No. 5 of the

House Comm. on the Judiciary, supra, at 1031.

Senator Tydings also referred during the debates

to testimony before a Senate subcommittee concern-

ing highly incriminating oral communications that

had been intercepted by the FBI through use of a

bugging device placed in the office of an organized

crime figure. See Controlling Crime Through More

Effective Law Enforcement: Hearings on S. 300, ete.

Before the Subcomm. on Criminal Laws and Proce-

dures of the Senate Comm. on the Judiciary, 90th

Cong., 1st Sess. 937-954, 998 (1967). The device had

been installed by trespassory means but without a

warrant, and the evidence obtained was therefore in-

admissible in court. See id. at 970-971. Senator

Tydings assured his colleagues that electronic eaves-

dropping accomplished in this manner but in com-

ptiance with the provisions of Title III requiring

advance judicial authorization would have produced

a different result (114 Cong. Rec. 12986 (1968)):

Under the bill [now] before us, with a proper

showing of probable cause and close judicial

supervision, this surveillance could have been

used to indict and convict [the target of the

surveillance]. That he cannot be held respon-

sible for all his criminal activities, with all that

we know, is incredible.

Despite this clear congressional awareness of the

necessity for covert entries in order to carry out

judicially authorized eavesdropping approved by the

statute, nothing in Title III suggests that such tech-

niques henceforth were to be prohibited. The most

logical conclusion to be drawn from Congress’ failure

to address the matter in the statute is that it as-

sumed that the normal methods of effectuating elec-

tronic surveillance of oral communications were al-

ready authorized and would continue.” It bears re-

peating that Title III was a response to court de-

cisions that had declared unconstitutional the pro-

cedures followed in employing several investigative

tools that had proven quite valuable to law enforce-

ment efforts, especially against organized crime. “The

major purpose of title III,” as the Senate Report

explained, “is to combat organized crime” (S. Rep.

No. 1097, supra, at 70), and accordingly Congress

had little incentive to circumscribe those efforts more

narrowly than was constitutionally necessary. See

** In its comment on the statutory definition of “oral com-

munication,” for example, the Senate Report cited Silverman

and Berger and noted that Title III was intended merely to

reflect existing law. S. Rep. No. 1097, supra, at 89-90. Al-

though the American Bar Association also has recognized

that surreptitious entry must accompany the installation of

most bugging devices (ABA Standards for Criminal Justice,

Electronic Surveillance, General Commentary, at 45, 65 n.

175, 91-92; Commentary on Specific Standards, at 139-140,

149; Appendix D, at 209 (Approved Draft 1971) ), it too has

not adopted a specific surreptitious entry provision in either

the Tentative Draft of 1968 or the Approved Draft of 1971.

Compare §§ 5.7-5.8, at 8 in the Standards of the Tentative

Draft with §§ 5.7-5.8, at 18-19 of the Proposed Final Draft

of Standards.

United States v. Kahn, supra, 415 U.S. at 151. In-

stead, the statute was viewed as “[l]egislation meet-

ing the constitutional standards set out in the [Berger

and Katz] decisions, and granting law enforcement

officers the authority to tap telephone wires and in-

stall electronic surveillance devices in the investiga-

tion of major crimes and upon obtaining a court

order” (S. Rep. No. 1097, supra, at 75).

Indeed, contrary to petitioner’s assertion (Br. 17)

that Title III is utterly silent on the matter, there

are a number of indications in the statute that Con-

gress expected that law enforcement officers wotild

have to engage in surreptitious entries. First, Title

III is specifically directed to the interception of both

“wire” and “oral” communications (18 U.S.C. 2518

(1)), and there can be no serious dispute that the

latter type of interception frequently entails the

placement of a “bug.” Second, Congress broadly

** Title III is the product of two bills. The first (S. 675,

90th Cong., Ist Sess. (1967)) was introduced by Senator

McClellan in January 1967, five months prior to the Court’s

decision in Berger. See S. Rep. No. 1097, supra, at 225. That

bill proposed to prohibit wiretapping by persons other than

duly authorized law enforcement officers acting pursuant to

court order but did not attempt to legislate with respect to

electronic eavesdropping. At the time the McClellan bill was

introduced, federal law proscribed all private and governmen-

tal wiretapping. By contrast, “bugging” was constitutionally

and statutorily permissible so long as it did not entail a war-

rantless physical trespass onto private property.

S. 675 would have left the pre-Berger law on “bugging”

unchanged. Two weeks after the decision in Berger, however,

Senator Hruska, who had co-sponsored S. 675, introduced a

second bill, S. 2050, 90th Cong., 1st Sess. (1967) (see 113

defined “electronic, mechanical, or other [surveil-

lance] device” to mean “any device or apparatus

which can be used to intercept a wire or oral com-

munication” (18 U.S.C. 2510(5); emphasis added),

thus plainly including listening devices, such as

Cong. Rec. 18007 (1967) ), which was “tailored to meet the

constitutional requirements imposed by that decision.” S. Rep.

No. 1097, supra, at 224. This second bill, which applied to

electronic eavesdrops as well as to wiretaps (see 114 Cong.

Rec. 13209 (1968)), was eventually enacted, with modifica-

tions following the decision in Katz, as Title III. See United

States v. Donovan, supra, 429 U.S. at 426. Senator Hruska’s

statements during the legislative hearings leave no doubt that

S. 2050 was intended to authorize the interception of oral

communications, subject to the Fourth Amendment require-

ments outlined in Berger. See Controlling Crime Through

More Effective Law Enforcement: Hearings on S. 300, ete.

Before the Subcomm. on Criminal Laws and Procedures of

the Senate Comm. on the Judiciary, supra, at 11.

As petitioner notes (Br. 17-18), the Ninth Circuit has

gleaned from this history that “ [t}here is not the slightest

suggestion in Senator Hruska’s remarks to indicate any in-

tent on his part to overturn the long-established Silverman

doctrine that evidence obtained by trespassory bugging was

inadmissible as a violation of the Fourth Amendment.” United

States v. Santora, supra, 583 F.2d at 459. But, as we have

discussed above (see pages 20-21 and note 4, supra), Silver-

man held only that warrantless trespasses to plant a bug were

contrary to the Fourth Amendment. It was the absence of a

warrant, rather than the surreptitious entry, that offended the

Constitution, and Title III was plainly designed to remedy that

defect by requiring judicial authorization before law enforce-

ment officers could engage in any form of nonconsensual elec-

tronic surveillance. See Silverman v. United States, supra,

365 U.S. at 512 (“a federal officer may [not] without war-

rant and without consent physically entrench into a man’s

office or home, there secretly observe or listen, and relate at

the man’s subsequent criminal trial what was seen or heard”

(emphasis added) ; United States v. Agrusa, supra, 541 F.2d

at 696 n.12.

“bugs,” that in the vast majority of instances re-

quire covert installation within enclosed private

areas. Third, the statute requires that the inter-

ception application and order contain a “full and

complete statement * * * including * * * a particular

description of the nature and location of the fa-

cilities from which or the place where the communi-

cation is to be intercepted * * *.” 18 U.S.C. 2518

(1)(b) (ii) (emphasis added); see also 18 U.S.C.

2518(3) (d), (4) (b). Finally, 18 U.S.C. 2518(4) spe-

cifically authorizes a court, upon request of a law

enforcement officer, to direct private citizens, includ-

ing a “landlord, custodian or other person,” to “fur-

nish [the officer] all information, facilities, and tech-

nical assistance necessary to accomplish the intercep-

tion unobtrusively” (emphasis added). These pro-

visions, as the Fourth Circuit has observed, “at least

inferentially, support[] the * * * position that Con-

gress intended to approve covert entry as a permis-

sible concomitant of judicially-sanctioned eavesdrop-

ping.” Application of United States, supra, 563 F.2d

*° See Electronic Surveillance, supra, at 81. The language of

Section 2518(4), as Judge Celebrezze observed in United

States v. Finazzo, supra, 583 F.2d at 851, “apparently au-

thorizes furtive placement of listening devices by gaining

access to telephone lines, by using an apartment master key, or

by other similar ploys. It is anomalous to hold that the stat-

ute does not authorize the entry involved in this case (through

an unlocked window) when it plainly authorizes such an

entry when facilitated by a landlord or custodian.” Accept-

ance of petitioner’s argument, he noted, “could make the

result in a given case turn on the fortuity of whether one is

an owner of his premises or a tenant or whether one employs

custodians or not” (ibid.).

at 642. Accord, United States v. Scafidi, supra, 564

F.2d at 639; United States vy. Ford, 414 F. Supp.

879, 883 (D. D.C.), aff'd, 553 F.2d 146 (D.C. Cir.

1977) ; United States v. Volpe, 430 F. Supp. 931,

932-934 (D. Conn. 1977), aff'd, No. 77-1311 (2d

Cir. Aug. 7, 1978), petition for a writ of certiorari

pending, No. 78-385.

In sum, given the documented history of Title III

“replete with references to the evils of organized

crime and the pressing need to apprehend its perpe-

trators through the interception of their communi-

cations” (Application of United States, supra, 563

F.2d at 642), the strong evidence that Congress was

well aware that the interception of oral communi-

cations is often accomplished by means of a “bug-

ging” device surreptitiously placed in the target

premises, and the unmistakable indications in the

Statute itself that Congress nonetheless intended to

authorize electronic eavesdropping in appropriate

circumstances and, when necessary, to require per-

sons such as landlords to assist in the eavesdropping,

it would “imput[e] to [Congress] a self-defeating,

if not disingenuous purpose” (Nardone v. United

Stotes, 308 U.S. 338, 341 (1939)) to conclude that

Title III was meant, without Saying so, to forbid law

enforcement officers from utilizing a proven, con-

stitutional investigative technique essential to the

success of a great many oral interceptions.” The

*° See United States v. New York Telephone Co., supra, 434

U.S. at 170 (“we could not hold that the District Court lacked

any power to authorize the use of pen registers without defy-

ing the congressional judgment that the use of pen registers

‘be permissible’ ”’).

available evidence surely fails to indicate any “con-

gressional intent to open such a loophole in Title

III.” Application of United States, supra, 563 F.2d

at 643.

III

HE ENTRY ONTO PETITIONER’S BUSINESS

PREMISES TO INSTALL A LISTENING DEVICE

WAS LAWFUL EVEN THOUGH THE DISTRICT

COURT DID NOT SEPARATELY AND EXPRESSLY

AUTHORIZE THE ENTRY IN ADVANCE

While a telephone wiretap can often be installed

from outside the target’s premises, instaliation of an

electronic eavesdropping device ordinarily requires a

surreptitious entry into the area where the oral com-

munications are to take place. See Report of the

National Commission for the Review of Federal and

State Laws Relating to Wiretapping and Electronic

Surveillance (Electronic Surveillance) 43-44 (1976).

Partly for this reason, requests for eavesdropping

orders are much less common than requests for wire-

tap orders. In 1977, for example, federal and state

agents obtained a total of only 45 eavesdropping

orders, while in the Same year courts issued a total

of 554 wire interception orders. Administrative Of-

fice of the United States Courts, Report on Applica-

tions for Orders Authorizing or Approving the In-

terc piion of Wire or Oral Communications for the

Pe iod January 1, 1977 to December 31, 1977 xiv

(i978) .7

2. The total number of oral interception orders entered each

year has fallen to the present level from a high of 80 in 1973.

In that year 731 telephone wiretap authorization orders were

We have been informed by the FBI that, when it

is feasible, agents employ ruses to obtain access to

premises where the courts have authorized oral in-

terceptions in order to install the necessary eaves-

dropping equipment. A bomb scare ruse, for exam-

ple, was used in United States v. Ford, supra.

Usually, however, such techniques are not feasible,

and a covert entry must be made.” See Electronic

Surveillance, supra, at 15, 43. Moreover, it is almost

never possible to conduct electronic eavesdropping

without some kind of physical intrusion into the tar-

get premises. “Buck Rogers” type of equipment

designed to overhear conversations in a closed room

without the necessity of a physical intrusion is sim-

ply not reliable enough at present to be of any real

entered. See Electronic Surveillance, supra, at 269. See also

Administrative Office of the United States Courts, Report on

Applications for Orders Authorizing or Approving the Inter-

ception of Wire or Oral Communications for the Period

January 1, 1976 to December 31, 1976 xvi (1977) ; Adminis-

trative Office of the United States Courts, Report on Applica-

tions for Orders Authorizing or Approving the Interception

of Wire or Oral Communications for the Period January 1,

1975 to December 31, 1975 xiv (1976).

* The court of appeals in Ford stated that the term “sur-

reptitious entry” encompasses both entries by ruse or strate-

gem and covert entries (553 F.2d at 154 n.32), and it held

that there is no difference between ruse entries and covert

entries for Fourth Amendment purposes (id. at 155 n.35).

While we have reservations about the soundness of this equa-

tion of ruse entries with covert entries (cf. Sabbath v.

United States, supra, 391 U.S. at 590 n.7; Lewis v. United

States, 385 U.S. 206 (1966)), the Court need not reach this

issue here, since in this case the entry was covert.

use in carrying out oral interception orders. Elec-

tronic Surveillance, supra, at 44. National Commis-

sion for the Review of Federal and State Laws Re-

lating to Wiretapping and Electronic Surveillance,

Commission Studies, State of the Art of Electronic

Surveillance 171-172, 179-182 (1976).

Petitioner nonetheless contends (Br. at 25-29) that,

although the district court authorized the intercep-

tion of oral communications in his office, his convic-

tion should be overturned because the court did not

separately and expressly authorize the entry neces-

sary to install the eavesdropping device. We submit

that there is no statutory or constitutional require-

ment that the entry be separately authorized, so long

as the entry is essential to effectuate the authorized

interception and is accomplished in a reasonable

manner.

Title III itself imposes no requirement that a dis-

trict court separately approve the entry to install an

eavesdropping device. As we have discussed, the leg-

islative history of the statute plainly shows that

Congress was aware that on-site electronic surveil-

lance would ordinarily require covert trespassory in-

stallation. The 1970 amendments* provide further

support for this view. They authorize the court to

require a landlord or custodian, among others, to

22 Congress amended Sections 2511(2) (a), 2518(4), and

2520 of Title III as part of the District of Columbia Court

Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-

358, 84 Stat. 473, 654. All three amendments related to the

authority of the court to order third parties to cooperate with

government agents seeking to execute a surveillance order.

furnish the applicant with facilities and equipment

to accomplish the interception “unobtrusively,” dem-

onstrating that Congress contemplated that such

“unobtrusive” entries would often be necessary. As

Judge Gurfein pointed out in his concurring opinion

in United States v. Scafidi, supra, 564 F.2d at 643,

this provision is intended for the benefit of the ap-

plicant: a “cooperation order” is incorporated in

the surveillance order only “upon request of the ap-

plicant.” Thus, if the agent can obtain the necessary

cooperation on his own, or if no such cooperation is

necessary to install the listening device, the order

authorizing the surveillance need not specially ad-

dress the mode of installation.

Since the statute does not require a separate au-

thorization for entry, petitioner’s claim turns solely

on the Fourth Amendment. Under Fourth Amend-

ment analysis, the absence of separate authorization

for the entry is not fatal to the surveillance order.

The order in this case authorized a search and seizure

of particular types of conversations in a specified

place; this satisfied the constitutional requirement

that a warrant “particularly describ[e] the place to

be searched, and the person or things to be seized.”

The order was issued by a neutral judicial officer

upon a sworn statement and after a judicial finding

of probable cause that petitioner was engaged in

criminal activity, that the activity was being carried

out in the place to be searched, and that the conver-

sations to be seized would contain evidence of the

criminal activity under investigation. The order thus

satisfied the constitutional requirement that a war-

rant issue only “upon probable cause, supported by

Oath or affirmation.” Hence, the order met each of

the requirements of the Warrant Clause of the

Fourth Amendment. Only if the search was un-

reasonable and thus in violation of the reasonable-

ness clause of the Amendment would the Constitu-

tion be offended and the exclusion of the evidence

seized be appropriate.

The Fourth Amendment, of course, protects

against unreasonable methods of executing warrants,

just as it protects against unreasonable methods of

executing otherwise permissible warrantless searches.

See Zurcher v. Stanford Faily, 436 U.S. 547, 559-

560 (1978); Marron v. United States, 275 U.S. 192

(1927); ef. Ker v. California, supra. Accordingly,

if there were reasonable methods short of a tres-

passory entry by which to intereept the oral commu-

nications that were the subject of the order, or if

the law enforcement agents had used unreasonable

means of gaining entry to install the listening device,

the constitutionality of the search might properly be

questioned. Similarly, if the agents had departed

from their task of installing the listening device and

had searched for and seized physical evidence inside

the building, that evidence would be excludable as

the product of an unlawful departure from the course

required to execute the warrant. See Stanley v.

Georgia, 394 U.S. 557, 571-572 (1969) (Stewart, J.,

concurring in the result). But in this case the dis-

trict court specifically found that “the safest and

- TOL a et a aa tpanine

arr

most successful method of accomplishing the instal-

lation of the [eavesdropping] device was through

breaking and entering the premises in question”

(Pet. App. 17a). The court of appeals accepted the

district court’s findings that “a surreptitious entry

was the most effective means for installing the in-

terception device” and that “the installation was

based upon probable cause and executed in a reason-

able fashion” (id at 7a). Thus, because the agents

conducted the oral interceptions with a proper war-

rant and because the means of executing the warrant

were reasonable, the subsequent seizure of petitioner’s

conversations was entirely consistent with Fourth

Amendment principles.

Although the Second and Third Circuits have

agreed with this analysis (Pet. App. 7a-8a; United

States v. Scafidi, supra, 564 F.2d at 639-640), the

Fourth and District of Columbia Circuits have taken

a contrary position. See Application of United States,

supra, 563 F.2d at 644; United States v. Ford, supra,

553 F.2d at 152-165. In the view of the latter courts,

* The Eighth Circuit in United States v. Agrusa, supra,

541 F.2d at 696 n.13, declined to reach the question whether

the entry would have to have separate express judicial au-

thorization in order for the intercepted conversations to be

admissible in evidence. The surveillance order in that case

included an express authorization for surreptitious entry.

541 F.2d at 693. In United States v. Finazzo, supra, the Sixth

reptitious entry and therefore did not reach the question

whether the absence of a separate entry authorization would

be enough to require suppression of the intercepted communi-

cations. In his concurring opinion, however, J udge Celebrezze

the entry to install the eavesdropping device and the

interception of oral communications implicate two

discrete privacy interests and thus require two dis-

tinct authorizations. But this analysis is unduly

rigid. To require that a court include separate, ex-

press authorization for each privacy interest that is

affected by a particular governmental intrusion

would be inconsistent with the warrant procedure as

it is employed in other contexts and would afford

little if any meaningful additional protection for in-

dividual privacy interests.

The main purpose of a warrant is to “interpose[]

a magistrate between the citizen and the police * * *

so that an objective mind might weigh the need to

invade [the individual’s] privacy in order to enforce

the law.” McDonald v. United States, 335 U.S. 451,

455 (1948). Accordingly, if the scope of the com-

peting privacy and law enforcement interests is rea-

sonably clear at the time the magistrate issues the

warrant, the purpose of the warrant procedure is

served. It would be unnecessarily cumbersome to re-

quire the magistrate io list and expressly authorize

each potential invasion of some privacy interest that

could be implicated in the course of executing the

warrant.

This analysis accords with the practice followed

in the case of conventional warrants authorizing the

search for and seizure of physical evidence. Tradi-

tionally, the intrusion sanctioned by such warrants

has been considered a single invasion of privacy for

Fourth Amendment purposes, even though the in-

trusion implicates both the target’s interest in the

private uninterrupted enjoyment of the property

seized and his interest in the privacy of the premises

in which the property is located. As the Court noted

in Boyd v. United States, 116 U.S. 616, 622 (1886),

the entry to effect a search and seizure is but “[ar]

aggravating incident[] of actual Search and seiz-

ure.” Thus, the entry necessary to accomplish a

search and seizure ordered by a conventional war-

rant is not regarded as a separate intrusion requir-

ing separate, explicit judicial authorization. See Fed.

R. Crim. P., Appendix of Forms, Form 15. Rather,

the warrant’s express directive to Search a described

place for specified items is deemed to carry with it

the implicit authority to utilize reasonable means to

execute the search, including forcible breaking and

entry into the premises, if necessary.

The law governing arrests pursuant to valid arrest

warrants provides further support for this analysis.

The courts are in agreement that when an officer

has a valid arrest warrant and probable cause to be-

lieve the subject of the warrant is at home, he may

enter the subject’s home without the need of a search

warrant or other authorization for the entry. See

United States v. Cravero, 545 F.2d 406, 421 (5th

Cir. 1976) (on petition for rehearing), cert. denied,

429 U.S. 1100 (1977); United States v. Brown, 467

F.2d 419, 423 (D.C. Cir. 1972) ; cf. Sabbath v. United

States, supra.” The entry into the home invades an

** In holding that 18 U.S.C. 3109 applies to the execution of

arrest warrants as well as search warrants, the Court in

Sabbath implicitly approved entries into homes under the

arguably separate Fourth Amendment interest from

the interest affected by the arrest itself, but the

courts have regarded the arrest warrant as sufficient

to override both interests.” Thus, if the search or

seizure is authorized, the incidental invasion of other

Fourth Amendment interests does not require sepa-

rate authorization, at least where it appears likely

at the time of the authorization that the incidental

intrusion will be necessary.

Support for this analysis can also be found in the

recently enacted Foreign Intelligence Surveillance

Act of 1978, Pub. L. No. 95-511, 9° Stat. 1783. See-

tion 105(b) provides that an orc: approving elec-

tronic surveillance under the Act must specify, among

other things, “the means by which the electronic

surveillance will be effected and whether physical

entry will be used to effect the surveillance.” Section

105(b)(1)(D). Significantly, the legislative history

of the Act notes that the requirement that the surveil-

authority of arrest warrants, while holding that notice would

ordinarily be required before entering, absent exigent cir-

cumstances.

** The courts of appeals are split on the question whether

an entry can be made into a third party’s home to arrest the

subject of a warrant, without a separate authorization for the

entry. Compare United States v. Cravero, supra; United

States v. McKinney, 379 F.2d 259, 262-263 (6th Cir. 1967) ;

and United States v. Brown, supra, with Government of the

Virgin Islands v. Gereau, 502 F.2d 914, 928-980 (3d Cir.

1974). The somewhat different question of the validity of an

entry to make an arrest without any kind of warrant is now

before the Court in Payton v. New York, No. 77-6420.

SAAD A at a a acca

lance order specify the place or facilities against

which the surveillance is directed and the type of in-

formation sought is “designed to satisfy the Fourth

Amendment's requirements that warrants describe

with particularity and specificity the person, place,

and objects to be searched or seized.” S. Rep. No.

95-601, 95th Cong., 2d Sess. 49 (1978). The re-

quirement that the mode of installation be specified,

however, was said to be “in addition to the Fourth

Amendment’s requirements” (ibid.). Thus, although

the statute included the requirement, not present in

Title III, that the mode of entry be specified in the

order, that provision was recognized by Congress to

be statutory, not constitutional, in scope.

Application of this analysis to the present case

leads to the conclusion that Separate, express lan-

guage in the order authorizing entry to install the

listening device was not constitutionally required.

As we have noted, the legislative history of Title

III shows that Congress was well aware that covert

entries would ordinarily be required to execute an

eavesdropping order. Moreover, as is evident from

the description of the premises contained in the

eavesdropping application at issue here (see Pet.

App. 17a-18a), “a surreptitious entry was within

contemplation” (id. at 6a) when the order was is-

sued. Accordingly, just as a conventional warrant

is deemed to contaii: implicit authorization to use

such means as are reasonably necessary to execute

the search and seizure it commands, so the authori-

zation to intercept the conversations in this case must

reasonably be interpreted as providing “concomitant

authorization for agents to covertly enter the prem-

ises in question and install the necessary equipment”

(id. at 18a). To hold otherwise is to assume that

the authorizing judge engaged in the pointless exer-

cise of ordering the agents to intercept certain con-

versations at petitioner’s place of business while

withholding from them the means of carrying out

his order.

Our contention that the eavesdropping order in

this case implicitly authorized the surreptitious entry

necessary to implement it is a limited one. We are

not suggesting that it would be constitutionally rea-

sonable or implicitly authorized for agents to use a

covert entry technique in any case in which the in-

terception could be accomplished by less intrusive

means, nor are we suggesting that re-entries for the

purpose of improving the quality of the interceptions

would not require specific judicial consideration and

authorization. Compare United States v. Ford,

supra.” We simply contend that in a case like this

one, where there has been only a single entry to in-

stall the electronic listening device, where that en-

try was the only feasible means of executing the

court’s order, and where the conduct of the agents

while inside petitioner’s premises was limited to in-

stallation of the listening device, there is no basis

** Unlike the initial entry, re-entries to fix or relocate an

existing listening device cannot so readily be viewed as having

been within the contemplation of the judge who issued the

eavesdropping order.

for refusing to hold that the entry was implicitly

authorized by the eavesdropping order and was con-

stitutionally reasonable.

The soundness of the foregoing argument is fur-

ther bolstered by the fact that the issuing judge,

knowing that a surreptitious entry is likely to be

required to carry out an eavesdropping order, is free

to regulate or restrict the means of installing the

equipment as a condition to issuance of the warrant

(see United States vy. Scafidi, supra, 564 F.2d at 644

(Gurfein, J., concurring) ), just as a judge or magis-

trate issuing a conventional warrant can impose con-

ditions upon the manner of its execution. See Zucher

v. Stanford Daily, supra, 436 U.S. at 566; Andresen

v. Maryland, 427 U.S. 463, 482 n.11 (1976). Dis-

obedience to such directives presumably would jus-

tify suppression of the evidence seized. But the fact

that the court maintains control over the manner of

execution of the warrant if it chooses to exercise such

control does not mean that it must so choose or that

a search is invalid if the court fails explicitly to ad-

dress the manner of execution, particularly when the

likely manner of execution is evident to the court

from the face of the application.

Even though we contend that it is not constitu-

tionally required, we recognize that the preferable

course is for government agents to include a de-

scription of the proposed method of installation in

an application for an eavesdropping order and for

the court expressly to authorize the entry in the

order authorizing the eavesdropping. As _ several

courts have observed, it imposes no significant ad-

ditional burden on the government to seek explicit

authorization for the surreptitious entry. See United

States v. Scafidi, supra, 564 F.2d at 644; Pet. App.

7a. Moreover, because a post-interception finding

that the method used to install the listening device

was unreasonable may jeopardize a lengthy investi-

gation or an important prosecution, it helps ensure

the success of the investigation if the applicant ob-

tains prior judicial approval for the method to be

used to install the listening device.

In light of these considerations, the Department

of Justice has, since the decision in the Ford case,

sought express judicial approval in all eavesdropping

applications for the entry necessary to install the

eavesdropping device. Attorneys supervising the in-

terception of oral communications have also been

instructed to seek explicit judicial approval for each

subsequent entry required to effectuate the surveil-

lance. The following language is currently included

in Departmental authorizations of applications for

interception of oral communications:

The application should include a request that

the order providing for the interception spe-

cifically authorize surreptitious entry for the

purpose of installing and removing any electronic

interception devices to be utilized in accomplish-

ing the oral interception. Further, an order

should be obtained for each additional entry to

replace or maintain any oral interception de-

vices.

nie a, oe

Because the interception in this case occurred in

1973, before the Department’s policy was instituted,

no separate authorization was sought for the entry.

Nonetheless, petitioner’s conviction should not be up-

Set on this ground. For the reasons we have stated,

even though a separate entry authorization may be

prudent and may be required in some cases, it was

not required in this case by either the Statute or the

Constitution. Accordingly, neither the Statutory sup-

pession remedy (18 U.S.C. 2515, 2518(10) (a)) nor

the Fourth Amendment’s exclusionary rule requires

that the recordings of petitioner’s intercepted con-

versations be suppressed.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

WILLIAM C. Bryson

KENNETH S. GELLER

Assistants to the Solicitor General

JEROME M. FEIT

KATHERINE WINFREE

DECEMBER 1978 Attorneys

x U. S. GOVERNMENT Painting orrice; 1976 263995 281

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