# Respondents Brief — Dalia v. United States

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## Record

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

## Text

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

I.

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-
ee

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 -

13
18

18

20

22

26

32

44
57

II

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

IV

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

V
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

VI
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) 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).

30

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.”

31

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.

32

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.

II

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

33

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-

34

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.

© Although Section 3109 requires the police officer to give
“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

35

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

36

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.

37

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

38
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.

39

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.

40

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

41

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.

42

“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.).

43

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’ ”’).

44

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

45

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.

46

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.

47

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

48

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

49

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

50

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-

51

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

53

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

54

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.

55

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

56

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

57

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1105%3A5. Public record. Not legal advice.