# Petition — Andrews v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2768%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 441 U.S. 962 ## Text a Supreme Court U3, | FILED APR-R4 1979 In the Supreme Co aN RODAK, JRug CLERK OF THE United States Octoser TERM, 1978 wo 68-1624 Searcy Baker ANDREWS, Cares Masao JOHNSON, Petitioners, Vs. Unrrep States or AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Ninth Circuit Marcus S. Tore. Pavuu D. Wor 360 Pine Street Penthouse Suite San Francisco, CA 94104 Telephone: (415) 421-6140 Attorneys for Petitioners William Osterhoudt 1632 Union St A 94123 SOWNE-PERNAU WALS San Francisco, C pK — oe Te ccs sre eer rere on re Oe cre ee ee ee , eae. NS Questions presented for review ...................60000005. Constitutional and statutory provisions ..................... ESE SS ne a Oe ee eR The court below erred in failing to find that the Fourth Amendment and 18 U.S.C. § 2510 et seq. require a sufficient showing of probable cause be set forth as to petitioner Andrews prior to the issuance of wiretap orders which re- sulted in interception of his conversations ............... Ir The court below erred in finding that the requisite necessity Ill The court below erred in ——s that the minimization re- quirement of 18 U.S.C. § 2518(5) was satisfied ........... NE EB ys a ek OE ip Sot AA en 2G 10 16 ii TABLE OF AUTHORITIES CITED Cases Berger v. New York, 388 U.S. 41 (1967) .................. 13 United States v. Abascal, 564 F.2d 821 (9th Cir. 1977) cert. den. sub nom. Frakes v. United States, ... U.S. ..., 98 S.Ct. 1521, and ... U.S. ...., 98 S.Ct. 1583 (1978) ........ 4 United States v. Curreri, 388 F.Supp. 607 (D. Md. 1974) ...._ 18 United States v. Damitz, 495 F.2d 50 (9th Cir. 1974) ...... 19 United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658 (1977 } i United States v. Giordano, 416 U.S. 505 (1974) ............14,20 United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975) ... .16, 18 United States v. Kerrigan, 514 F.2d 35 (9th Cir.), cert. denied, Sy Ue MM got feces, C04 blanc we tec ens ck arcs 16 Wong Sun v. United States, 371 U.S. 471 (1963) ........... 16 Constitutions United States Constitution, Fourth Amendment ... .2, 12,17, 14,15 Rules Federal Rules of Criminal Procedure, Rule 23(c) ........... 7 Statutes Bp Was I 5.55 oink i vevsc cn ctveneats 2, 10, 12 I Se, 5 WE Oe ee A diy cing ving 354 as ba aie 2 I eo ek oT ae eae nd a 3 Se Po, eee ees rt, Ta. 13 i a SRR, So SCO Se 2 14 Section 2518(1 tP} Fok Caer ata ace te ooo ale 13 Section 2518(1)(b)(iv) .............. RP ORS 14 Section 2518(1(c) ..... Kpdelwae tuees hceaniale 2, 16, 20 a ke ERE odes ie ae aes 14 Section 2518(3 {2 ee Caled Dae hana 13, 14 I noes bso /sCh os een ce cea ee 2, 16, 20 Section 2518(3 is DR Pe ee eer ety re nk 14 ooo o's. win'd vba ba x « Mace sata ORS 13, 14 Es a sss rca cu kl a bd Saree Cu 2, 20, 21 DE Ue IE 5 vk cee crecrccceescrvsncccens 6 US cd sin igs y orks bo aw ds kaw 6 oe os ee oon tee 6 Be Sie WI IEE ih bids nc s edd wis a bs bdo ea wuscaae 2 Other Authorities 2 U.S. Code Cong. & Admin. News, 2112 (1968) ............ 13 eres — eed In the Supreme Court OF THE United States OctoBer TERM, 1978 No. Searcy Baker ANDREWS, . Cartes Masao JOHNSON, Petttioners, vs. Unrtep States or AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Ninth Circuit The petitioners, Searcy Baker Andrews and Charles Masao Johnson, respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Ninth Circuit, entered March 26, 1979. OPINION BELOW The Court of Appeals entered its opinion on March 26, 1979. A copy of the opinion affirming the judgments of con- viction is attached as Appendix A. 2 JURISDICTION Jurisdiction of this Court is invoked under Title 28, United States Code, Section 1254(1). — QUESTIONS PRESENTED FOR REVIEW (1) Did the Court below err in failing to find that the Fourth Amendment and 18 U.S.C. § 2510 et seq. require a sufficient showing of probable cause be set forth prior to issuance of the wiretap orders? | (2) Did the Court below err in finding that the requisite . necessity requirements of 18 U.S.C. §¢ 2518(1)(¢) and (3) (ce) were satisfied ? (3) Did the Court below err in finding that the minimi- zation requirement of 18 U.S.C. § 2518(5) was satisfied? CONSTITUTIONAL AND STATUTORY PROVISIONS United States Constitution, Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly describ- ing the place to be searched, and the persons or things to be seized. 18 U.S.C. § 2515: Prohibition of use as evidence of intercepted wire or oral communications. Whenever any wire or oral communication has been intercepted, no part of the contents of such communi- cation and no evidence derived therefrom may be re- ceived in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, depart- ment, officer, agency, regulatory body, legislative com- ee ——— 3 mittee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter. 18 U.S.C. § 2518: Procedure for interception of wire or oral communi- cations. (1) Each application for an order authorizing or ap- proving the interception of a wire or oral communica- tion shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: (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 issued, 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, committing the offense and whose communications are to be inter- cepted ; (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; (3) Upon such application the judge may enter an ex parte order, as requested or as modified, author- 4 izing or approving interception of wire or oral com- munications within the territorial jurisdiction of the court in which the judge is sitting, if the judge deter- mines on the basis of the facts submitted by the ap- plicant that— (a) there is probable cause for belief that an indi- vidual is committing, has committed or is about to com- mit a particular offense enumerated in section 2516 of this chapter; . (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) there is probable cause for belief that the facili- ties from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the com- mission of such offense, or are leased to, listed in the name of, or commonly used by such person. (4) Each order authorizing or approving the inter- ception of any wire or oral communication shall specify— 2 (a) the identity of the person, if known, whose com- munications are to be intercepted; (5) No order entered under this section may au- thorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an ex- tension made in accordance with subsection (1) of this section and the court making the findings required by 5 subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a pro- vision that the authorization to intercept shall be exe- cuted as soon as practicable, shall be conducted in such a way as to minimize the interception of communica- tions not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days. (10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, offi- cer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any in- tercepted wire or oral communication, or evidence de- rived therefrom, on the grounds that— (i) the communication was unlawfully inter- cepted ; STATEMENT OF THE CASE A. Course of Proceedings Beginning in August, 1975, and continuing through No- vember, 1975, Respondent sought and obtained authoriza- tion to conduct a series of five wiretaps on telephones located in three different residences. These wiretaps were directed first to telephones used by Robert Earl Andrews, then telephones used by petitioner Charles Johnson, and finally the telephone used by petitioner Searcy Baker Andrews. On November 30, 1975, both petitioners were 6 arrested pursuant to warrants based upon information re- ceived during the course of the wiretaps. On December. 18, 1975, the Grand Jury for the Northern District of California returned an indictment against both petitioners and 18 co-defendants. Petitioner Andrews was charged in Count 1 with conspiracy to possess with intent to distribute heroin and cocaine and to distribute heroin and cocaine (Title 21, U.S.C. 846). Counts 13, 18 and 24 charged petitioner Andrews with the use of a telephone to facilitate the conspiracy (Title 21, U.S.C. §843(b)). Count 33 charged that petitioner Andrews possessed co- caine in violation of Title 21 U.S.C. 841(a)(1) (CT 3-20).* Petitioner Charles Johnson was charged with conspiracy in Count 1 and with use of a telephone to facilitate a con- spiracy in Counts 12, 20, and 21 (CT 3-20). ‘The evidence presented to the Grand Jury consisted mainly of testimony regarding the contents of intercepted conversations, surveillance resulting from the intercepts, and the fruits of searches and seizures pursuant to war- rants obtained based upon information derived from the wiretaps. Various motions to suppress were filed (CT 906- 937, 951-957, 998-1011, 1032-1037, 1140-1145, 1237-1247) and heard by the district court in evidentiary hearings begin- ning June 1, 1976 (RT 1-929). The district court’s order denying motions to suppress was filed on June 17, 1976 (CT 1113-1120). Another court order denying further wire- tap motions and search and seizure motions was filed Sep- tember 14, 1976 (CT 1170-1175). * Abbreviation Code: CT—Clerk’s Transcript on —— RT—Reporter’s Transcript of Pretrial Hearings 7 Stipulations, saving all objections to admissibility re- garding the evidence.obtained from the wire intercepts of petitioners Andrews and Johnson were filed on September 30, 1976 (CT 1252-1261, 1299-1351). A court trial held on September 30, and October 5, 1976—pursuant to Rule 23(c) of the Federal Rules of Criminal Procedure—on a set of stipulated facts accompanied by government exhibits (CT 1352 and CT 1353). The vast majority of these exhibits were transcripts of various defendants’ telephone conver- sations. The stipulations further laid foundations for the wiretap transcripts and set out the results of government surveillance of defendants. On December 2, 1976, the court found petitioner Andrews guilty on all counts (CT 1560). On December 2, 1976, judg- ment and sentence was imposed for Searcy Baker Andrews of twelve (12) years, $25,000 fine and a special parole of five (5) years as to Count 1, four (4) years each as to Counts 13, 18, 24; twelve (12) years and a special parole term of five (5) years as to Count 33 (CT 1560). The sen- tences of imprisonment as to counts thirteen (13), eighteen (18) and twenty-four (24) were made to run consecutive to each other and concurrent with counts one (1) and thirty- three (33) of the indictment, and the sentence imposed on count thirty-three (33) of the indictment was to run con- current with the sentence of imprisonment imposed on Count 1 (CT 1561). On December 2, 1976, the court entered judgments of conviction as to petitioner Charles Johnson on all counts. Sentence was imposed for Charles Johnson of eight (8) years, and a special parole of five (5) years as to Count 1 and four (4) years each as to Counts 12, 20, and 21. The 8 sentences of imprisonment as to Counts 12, 20 and 21 were made to run concurrent with each other and concurrent with the sentence of imprisonment of Count 1 of the in- dictment. A timely notice of appeal was filed on December 2, 1976 (CT 1573). The Ninth Cireuit Court of Appeals affirmed the judgments of conviction of both petitioners on March 26, 1979. (See Appendix A.) B. Statement of Relevant Facts In 1975 the Federal Drug Enforcement Administration began an investigation into possible narcotic trafficking by one Robert Earl Andrews and others—including petitioners Searcy Baker Andrews and Charles Johnson. The agents learned of the trafficking initially from an informant (CT 85) (RT 224). The informant was, throughout the dura- tion of the investigation, the mistress of Robert Earl Andrews (RT 225). Some physical surveillance of Robert Earl Andrews, and at least one attempted “buy” from Robert Earl Andrews by an undercover agent, occurred prior to August, 1975. Beginning in early August, 1975, the respondent sought and received authorization to conduct a series of wiretaps. (See, e.g., CT 37, 38). The first two wiretaps were on phones located in Robert Earl Andrews’ residence (CT 37). The third and fourth taps were on phones located in peti- tioner Charles Johnson’s residence. The fifth and final tap was on a phone located in petitioner Searcy Baker An- drews’ residence (CT 38). Each application for a wiretap was accompanied by an affidavit of Drug Enforcement Ad- ministration Agent Kenneth Wallace, who was the case 9 agent. (See, e.g., CT 83-97, 99-104, 106-122, 123-135, 137- 150.) Each succeeding wiretap was based.on information learned from the preceding wiretaps. Each of the subse- quent applications incorporated the affidavits supporting the preceding wiretaps. The wiretaps ran for 74 days over a four month period. The first tap commenced August 18, 1975, and terminated August 25. The second tap commenced August 28, 1975 and terminated September 6, 1975. The third tap commenced September 30, 1975 and terminated October 17, 1975. The fourth tap commenced October 17, 1975 and terminated November 6, 1975. The fifth and final tap commenced No- vember 11, 1975 and terminated November 30, 1975. Petitioner Searcy Baker Andrews was named as a person whose conversations were likely to be intercepted in all but the first wiretap (CT 84, 100, 107, 124, 138). His con- versations were intercepted in all of the wiretaps. Drug related conversations of petitioner Searcy Baker Andrews were intercepted in the third, fourth and fifth wiretaps (CT 106-150, 1203-1209, 12’ v-1275). In the affidavit for the third wiretap the government falsely attributed a drug related conversation to petitioner Searcy Baker Andrews (CT 112). Drug related conversations of petitioner Charles Johnson were also intercepted in all the wiretaps. Numerous agents participated in the wiretapping and attendant surveillance. Logs of calls and tape recordings were made (CT 1251-1291). . As a result of evidence derived from the wiretaps the government secured arrest warrants for both petitioners and arrested them on November 30, 1975. 10 REASONS FOR GRANTING THE WRIT I THE COURT BELOW ERRED IN FAILING TO FIND THAT THE FOURTH AMENDMENT AND 18 U.S.C. § 2510 ET SEQ. REQUIRE A SUFFICIENT SHOWING OF PROBABLE CAUSE BE SET FORTH AS TO PETITIONER ANDREWS PRIOR TO THE ISSUANCE OF WIRETAP ORDERS WHICH RESULTED IN IN- TERCEPTION OF HIS CONVERSATIONS. In the August 18, 1975 wiretap application, petitioner Searcy Baker Andrews was not named as a person likely to be intercepted (CT 83-97). He was so named in each of the subsequent wiretap applications. The affidavit sup- porting the initial wiretap application was incorporated in the subsequent affidavits for each of the later wiretaps. The initial affidavit (August 18, 1975) was over fifteen pages long, and contained detailed information regarding Robert Earl Andrews’ narcotics dealings. The only infor- mation regarding petitioner Searcy Baker Andrews is a single statement attributed to a confidential informant that sometime in the past (possibly up to April, 1975) Robert Earl Andrews received his narcotics in part from petitioner Searcy Baker Andrews (CT 86). No other information concerning petitioner Andrews is set forth. The application for the second wiretap named petitioner Searcy Baker Andrews. The affidavit for the August 28, 1975 wiretap (CT 99-104) incorporated the August 18, 1975 affidavit and stated in pertinent part: “3. ... (a) There is probable cause to believe that Robert Earl Andrews and... [Searcy Baker Andrews] — —E 11 .. » have been and are now committing offenses in- volving . . . heroin and cocaine, in violation of Title 21, United States Code, Sections 841(a)(1)... (b) There is probable cause for belief that wire communications concerning these offenses will be ob- tained through the interception ... 4. ... [incorporation of 8/18/75 affidavit] ... In addition, based upon my examination of daily monitoring logs, listening to intercepted calls, and discussions with other agents, interceptions thus far have established that: (b) That Robert Earl Andrews and [Searcy Baker Andrews] ... are conducting a narcotics business. 5. That there is probable cause to believe Robert Earl Andrews and [Searcy Baker Andrews]. . . have used and are using the [target phone].” (CT 99-294). While otherwise setting forth the results of the first wiretap in detail, no factual assertion is made as to the specifies which support affiant’s allegations of probable cause as to petitioner Searcy Baker Andrews. After stating there is probable cause to believe Searcy Baker Andrews is committing the enumerated offenses—based on gen- eralized assertions of listening to unspecified calls, review- ing logs of unspecified contents, having unspecified conver- sations with other agents, and giving examples of calls of other defendants—the affiant concludes: “WHEREFORE, affiant believes the probable cause exists to believe Robert Earl Andrews and [petitioner Searcy Baker Andrews]... have been and are com- 12 mitting offenses involving ... heroin and cocaine .. . [and] ... have used and are using and will continue to use the [target] telephone .. .” (CT 103). The August 28, 1975 application essentially duplicated the affidavit and set forth no more than was set forth in the affidavit. No facts specific to petitioner Searcy Baker Andrews were stated. The order authorizing the tap was issued on the basis of: “. .. Application and order under oath having been made before me by John Gibbons .. . , and full con- sideration having been given to the matters set forth therein, and to the affidavits of Kenneth P. Wallace, attached thereto, the court finds: (a) There is probable cause to believe that... Searcy Baker Andrews... [ete.]” (CT 738-742). The affidavit for the third wiretap (September 30, 1975) incorporates the first affidavit and sets forth a drug related phone call attributed to petitioner Searcy Baker Andrews . (CT 112). This phone call was found to be erroneously attributed to petitioner Searcy Baker Andrews (CT 1117). The only other information regarding petitioner Searcy Baker Andrews in this highly detailed affidavit was that petitioner Searcy Baker Andrews had been seen in the company of petitioner Charles Johnson, one of the sus- pected narcotics traffickers (CT 120). No other facts as to petitioner Searcy Baker Andrews were enumerated. Again the authorizing judge issued the wiretap order based upon the sworn affidavits presented to him. 18 U.S.C. § 2510 et seq. was enacted by Congress to make the Fourth Amendment applicable to electronic sur- 13 veillance. The inter-relationship between 18 U.S.C. §$§ 2518(3)(a), 2518(1)(b), and 2518(4)(a) clearly estab- lishes that Congress intended Title III to impose a require- ment that the wiretap application contain a factual basis for establishing probable cause to support the conclusion that a particular named person is committing a specific offense and will be intercepted. . The legislative history of § 2518(a) supports the position that the statute requires a showing of probable cause as to each person named, thus reflecting the Fourth Amend- ment’s constitutional requirement. “Subparagraph (a) requires that the judge determine that there is probable cause for belief... [that the enumerated offense] ... is being, or has been... committed by a particular person ... With the findings required by subparagraphs (a) and (b), the order will link up specific person, specific offense and specific place. Together they are intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise and discriminate circumstances, which fully comply with the require- ments of particularity.” 2 U.S. Code Cong. & Admin. News, 2112, 2191 (1968) (em- phasis added). The Senate Report in turn cited to Berger v. New York, 388 U.S. 41, 58-60 (1967). In Berger, this Court construed the constitutional sufficiency of a New York wiretap statute which required, inter alia, “the naming of the person or persons whose communications . .. are to be overheard. . .” Berger held the mere naming of persons, while necessary, was not enough. Jd. at 58-60. The legislative history cita- tion to this specific portion of Berger supports the reading 14 of 3(a)’s “individual” to be those persons named in the order. As to those persons a factual basis supporting prob- able cause must be shown, since a specific item—a conver- sation of that particular person—is sought to be seized. That was not done as to petitioner Andrews in the present case. This Court has repeatedly held that the provisions of Title III must be strictly construed. United States v. Chavez, 416 U.S. 526 (1974); United States v. Giordano, 416 U.S. 505 (1974). , The Court of Appeals, relying upon United States v. Donovan, 429 U.S. 413 (1977), held Fourth Amendment requirements were satisfied in the present case by “identi- fication of the telephone line to be tapped and the particu- lar conversations to be seized,” and rejected the contention that probable cause must be stated in the current applica- tion for each person named therein as a probable converser. This holding disregards the statutory language in which the “individual” referred to in § 2518(3)(a) is the person or persons named in § 2518(1)(b) (iv), (4)(a), and (3)(d). Not only do §§ (1)(b)(iv), (3)(d) and (4)(a) encompass § (3)(a), but also § (3) refers back to the specific factual showing required in § (1). Moreover, in United States v. Donovan, supra, this Court held that § 2518(1)(b)(iv) requires that all persons, for whom the government has probable cause, be named in the wiretap order. Jd. 97 S.Ct. at 668. In so holding, this Court specifically rejected the “principal target” analysis adopted by the Court of Appeals below. In adopting the “target” analysis, the court below failed to consider peti- tioner Andrews’ right not to be overheard on a Title IIT 15 wiretap unless all of Title III’s requirements as to a person named in the application—i.e., petitioner Andrews—are satisfied. The Court of Appeals policy analysis in support of its probable cause holding is equally unpersuasive. Reasoning from Donovan’s requirement that an agency name all per- sons in its wiretap application for whom a probable cause showing can be made, the court below concluded that the agency would be overburdened if it had to make such a probable cause determination and showing for each person named. This burden is precisely that which Congress en- visioned when it enacted the detailed and exacting stand- ards of Title III. Further, the Court of Appeals apparently overlooked the fact that a district court judge must review the wiretap applications—before signing a Title III wire- tap order—to determine if the probable cause standard has been met as to each person named. Surely that judicial officer is capable of assessing correctly the probable cause showing offered as to each named individual. Thus, con- trary to the statement of the court below, the investigating agents are not burdened to any significant extent since they merely have to make a factual showing to the judge in the ex parte application. The judge, not the investigating agency, ultimately decides if probable cause has been es- tablished as to the named individuals in the application. This “burden” is precisely that which a judge must hear repeatedly in assessing probable cause for issuing com- plaints and in ruling on suppression motions where a prob- able cause issue is involved. In failing to recognize that Title III’s protection of pe- titioner’s Fourth Amendment and statutory privacy rights 16 were abridged by the absence in the wiretap application of facts upon which the judge could make the ultimate probable cause determination with respect to petitioner Andrews—an individual named in the application—the court below erred. This Court should grant the petition for a writ of certiorari to resolve this fundamental question regarding electronic surveillance. II THE COURT BELOW ERRED IN FINDING THAT THE REQUISITE NECESSITY REQUIREMENTS OF 18 U.S.C. §§ 2518(1)(c) and (3)(c) WERE SATISFIED. The requisite necessity requirements of 18 U.S.C. §§ 2518 (1)(c), and (3)(c) are to be given a practical, common- sense interpretation; wiretap, therefore, need not be re- sorted to only as a last resort. United States v. Kerrigan, 514 F.2d 35 (9th Cir.), cert. denied, 423 U.S. 924 (1975). However, before a wiretap authorization can properly issue, the applicant must, at the very least, make a full factual showing that other investigative techniques reasonably ap- pear unlikely to succeed if tried. United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975). Both petitioners asserted below, and assert here, that the application in support of the August 18, 1975 wiretap request was totally deficient under §§ 2518(1)(¢) and (3) (c). Since all subsequent wiretap orders and evidence de- rived as the fruits of this deficient application, suppression of all the evidence from the August 18, 1975 and subse- quent taps is required. Wong Sun v. United States, 371 US. 471 (1963). 17 The affidavit in support of the application for the August 18, 1975 wiretap is inadequate because it fails on its face to establish requisite necessity for a wiretap; it contains substantial material false statements; it states facts which militate strongly against a finding of requisite necessity; and numerous facts known to the Drug Enforcement Ad- ministration which would nave negated a requisite necessity finding were omitted from the affidavit. The application does not contain a detailed and complete factual statement which establishes why normal investiga- tive procedures were unlikely to succeed if tried. As pre- sented to the authorizing court (CT 793-822, 923), the government’s application makes only a few, vague “fac- tual” claims, key among which were the assertions that Robert Earl Andrews did not sell drugs to new customers who would not use drugs in his presence, and that physical surveillance would be impossible due to the geographic make-up of the area and the large number of drug users who frequented it. The applicant then concludes that “such” techniques—presumably controlled buys by agents and sur- veillance—would not show the scope of a conspiracy nor would they “provide enough evidence” to “arrest, indict, or convict” the conspirators. No further facts are set forth to explain the “factual” assertions concerning Robert Earl Andrews’ mode of operations or illuminating the “unsuc- cessful” surveillance efforts attempted. The affidavit is equally deficient. Drug Enforcement Ad- ministration Agent Wallace stated in the affidavit (CT 96) that physical surveillance would be impossible, without providing any facts to support his assertion. Further, the 18 Wallace affidavit mentions that two informers were un- willing to testify, but makes no mention of whether or not the informers have been offered immunity. Furthermore, the affidavit provides a detailed description of the ease with which a Drug Enforcement Administration Agent had in fact met with Robert Andrews in an attempt to purchase drugs. Since these “factual” allegations are conclusory, in- ternally inconsistent, and fail to establish why other tech- niques such as pen registers, consent calls, controlled buys, ordinary search warrants, informant testimony under im- munity grants, Drug Enforcement Administration infiltra- tion, or cooperation with local law enforcement authorities, would be unsuccessful, the requisite necessity standard has not been met. See United States v. Curreri, 388 F. Supp. 607 (D. Md. 1974); United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975). Furthermore, there were substantial false material rep- resentations in the affidavit and application that undermine the requisite necessity showing. Despite statements in the Wallace affidavit that the informant would not testify, the evidence adduced at the suppression hearing established that the informant would testify (CT 793-822; RT 243). In addition, government investigative reports provided to the defendants, and testimony of government agents es- tablished that successful surveillance had been conducted of Robert Andrews’ Vernon Street apartment when the nar- cotics trafficking occurred (CT 793-822). The testimony at the evidentiary hearing also refuted the Wallace affidavit assertions that Drug Enforcement Administration Agents were unable to deal in an undercover capacity with Robert Earl Andrews (CT 793-822). If the Wallace affidavit, there- 19 fore, is stricken in its entirety, or even stricken only as to the material misrepresentations, (see United States v. Damitz, 495 F.2d 50 (9th Cir. 1974)), the government’s requisite necessity showing fails to meet the statutory standards. Information developed by the defense during pretrial proceedings (CT 793-822) established that numerous facts which were relevant to the determination of requisite neces- sity were known to the Drug Enforcement Administration as of August 18, 1975, and were omitted in the affidavit. These omissions misrepresented the true picture of the Drug Enforcement Administration’s access to normal tech- niques to investigate the alleged conspiracy. Wallace omitted the following material information: (1) that one Mona Lisa Martini lived with Robert Earl Andrews for over two years; (2) that Martini was Robert Earl Andrews’ dope-runner and picked up narcotics for Robert Earl Andrews; (3) that Martini was on the govern- ment payroll; (4) that Mona Lisa Martini knew virtually all the persons in this case (CT 793-822); and (5) that Mona Lisa Martini spoke with these persons over the phone (CT 793-822; RT 223-290). Wallace also failed to inform the court that in addition to Mona Lisa Martini and one “Dirty Harry”, other informants with access to Robert Earl An- drews were known to Drug Enforcement Administration and not used (CT 793-822). Wallace also suppressed the fact that the Drug Enforcement Administration failed to use local and state police resources to investigate the case, and to develop other investigative leads. In ruling on the requisite necessity issue, the Court of Appeals failed to consider the variety of serious deficien- cies in the government’s requisite necessity showing. Since an the requisite necessity provisions are at the heart of Title III’s carefully drawn standards, this Court should grant certiorari in order to articulate clearly what factual show- ing the respondent must make to satisfy §§ 2518(1)(c) and (3)(¢). Ill THE COURT BELOW ERRED IN FINDING THAT THE MINIMIZATION REQUIREMENT OF 18 U.S.C. § 2518(5) WAS SATISFIED. The minimization requirement reflects the congressional intent that wiretapping not supplant traditional investiga- tive methods. United States v. Giordano, 416 U.S. 505 (1974). The limited use of wiretapping has been mandated by Congress through the § 2518(5) requirement that the in- terception of a telephone call be terminated as soon as pos- sible so that unnecessary intrusion is minimized. In the present case, the wiretapping lasted 74 days over a four month period and intercepted 4,000 telephone calls. While the standard for testing minimization is “reason- ableness” (see United States v. Chavez, 553 F.2d 491 (9th Cir.,) cert. denied, 96 S.Ct. 2237 (1976)), reasonableness must be determined in light of the life of the wiretapping. United States v. Abascal, 564 F.2d 891 (9th Cir. 1977) cert. denied sub nom. Frakes v. United States ...... 6 a 98 S.Ct. 1521 and ...... US. ......, 98 S.Ct. 1583 (1978). Further, the method of minimization (i.e. discontinuance of interception of innocent calls), must be considered in assessing § 2518(5) compliance. Respondent conceded below that by its own count, hun- dreds of non-drug and non-criminal calls were intercepted. 21. Further, after the first seven days of wiretapping, respond- ent had identified no fewer than thirteen people as targeted conspirators, including both petitioners. Considering that respondent had already secured the cooperation of a con- fidential informant (Martini) who resided at the Robert Andrews’ apartment which was the subject of the wiretap, it is inconceivable that further wiretapping—at least after September 7, 1975—was necessary. Thus, at that time or earlier, the failure to terminate the wiretap ran afoul of minimization requirements and mandates the suppression of all evidence derived subsequent to the time—no later than September 7, 1975—when § 2518(5) required termina- tion of wiretapping. In rejecting petitioners’ minimization argument, the Court of Appeals’ opinion failed to recognize the overall duration of the wiretaps, and did not consider the quality of the evidence obtained at an early stage of the wire- tapping, or the other investigative means available during the wiretapping. By focusing exclusively on the 37 day wiretap of petitioner Johnson’s phone, the court below failed to apply the minimization standards properly. Ac- cordingly, this Court should grant the petition for a writ of certiorari to resolve this important electronic surveillance issue. oF CONCLUSION For the reasons stated herein, the petition for a writ of certiorari should be granted. - Pn “Dated: April 18, 1979. . , Respectfully submitted, “Marcus S. Toren Paut D. Wor By Maxcus S. Toren Attorneys for Petitioners (Appendix Follows) . af APPENDIX A A-l APPENDIX A United States Court of Appeals for the Ninth Circuit United States of America, Plaintiff-Appellee, vs. Anthony Martin, Nolan Allen Hall, Searcy Baker Andrews, Charles Masao Johnson, a/k/a Chas, Stephen Bruce Davenport, a/k/a Steve Davenport, Lewis Nathaniel Dixon, a/k/a Baby Boy, B.B. and Pretty Boy Floyd, Defendants-Appellants. [Filed Mar. 26, 1979] . 4 No. 77-1271 No. 77-1272 No. 77-1281 No. 77-1282 No. 77-1338 No. 77-1619 Appeal from the United States District Court for the Northern District of California OPINION Before: WALLACE and HUG, Circuit Judges, and GRANT", District Judge HUG, Circuit Judge: Searcy Baker Andrews, Charles Johnson, Anthony Martin, Lewis Dixon, Nolan Hall and Stephen Davenport *Honorable Robert A. Grant, Senior United States District Judge for the Northern District of Indiana, sitting by designation. A-2 appeal from their convictions for violations of federal laws relating to the distribution and possession of illegal drugs. Defendants Andrews, Johnson, Hall and Martin were convicted after a two-day trial before the court, the primary evidence considered by the court being facts stipulated to by the prosecution and the defense. Defend- ants Davenport and Dixon were convicted after a jury trial. All of the convictions arose from the same set of events, and-the cases have been consolidated on appeal. Although the appellants challenge their convictions on numerous grounds, the principal issues presented for re- view concern the admissibility of evidence abtained through the use of wiretaps and the requisite elements of the crime of facilitation of the commission of a felony. We affirm as to all parties except Davenport. We affirm his conviction for attempted possession of narcotics, but reverse his convic- tion for facilitation of the drug conspiracy. I, COURSE OF THE PROCEEDINGS All defendants were charged in one count with conspiracy to distribute, and to possess with the intent to distribute, heroin and cocaine, in violation of 21 U.S.C. $846. All defendants except Davenport were convicted of this charge. The jury acquitted Davenport of the conspiracy charge, but convicted him of attempted possession of cocaine or heroin. : All defendants were charged in various counts with use of a telephone to facilitate a conspiracy in violation of A-3 21 U.S.C. 4 843(b), and each was convicted on one or more counts arising out of these charges. Except in the case of Davenport, the sentence imposed on each defendant was ordered to run concurrently with his sentence for the con- spiracy conviction. In Davenport’s case, the sentence was ordered to run concurrently with the sentence for the at- tempted possession charge. Andrews was also convicted of the substantive offense of possession with the intent to distribute cocaine, in vio- lation of 21 U.S.C. 4 841(a)(1). The sentence imposed was ordered to run concurrently with the sentence for the con- spiracy conviction. Il. FACTS In mid-1975, the Drug Enforcement Administration (DEA) instituted an investigation into what they believed to be a highly sophisticated drug ring involving some of the appellants. To facilitate this investigation, in August of 1975 the DEA sought and received authorization to conduct a series of wiretaps. The primary basis for the appeals of the defendants revolves around the validity of these wiretaps under 18 U.S.C. § 2518, since the most sig- nificant evidence offered by the government in the prosecu- tion below was obtained by means of these wiretaps. The initial wiretap was ordered on August 18, 1975. The issuing court authorized a wiretap on the phone of Robert Earl Andrews, a defendant who is not a party to this ap- peal, authorizing the interception of the conversations of “Robert Earl Andrews and others as yet unknown”. This A-4 authorization, although potentially effective for 20 days, was terminated after seven days, since the phone at the residence was replaced. On August 28, a new wiretap was ordered on this phone, naming Robert Andrews and ap- pellants Searcy Baker Andrews and Charles Johnson as probable conversers. This wiretap was terminated after ten days. On September 30, the issuing judge authorized a tap on the two phones in Johnson’s residence, this order naming as probable conversers appellants Johnson and Andrews, other persons not parties to this appeal and “persons un- known”. Although initially effective for 20 days, this wire- tap was renewed after 17 days. A new order was issued on October 17, renewing the prior wiretap on Johnson’s phones for another 20 days. This second order named ap- pellants Johnson, Andrews, Martin and Hall as probable conversers. The tap was terminated at thé end of 20 days. On November 11, the issuing judge authorized the wire- tapping of appellant Andrews’s phone. Named as probable conversers were Searcy Baker Andrews, Charles Johnson . and “others unknown”. This tap lasted for the full autho- rized period of 20 days. In addition to comprising a crucial portion of the evi- dence offered at trial, the information obtained through these wiretaps served other functions as well. Some of the information obtained from the earlier wiretaps was incor- porated into the affidavits in support of the later wiretaps. Additionally, with the evidence obtained from these wire- taps, affidavits were drawn up in support of search and arrest warrants which were ultimately used against the ee ec A-5 appellants. Pursuant to these latter warrants: (1) Andrews was arrested in his car; on the floor of his car, behind the driver’s seat, a leather bag was found which contained co- caine; (2) drugs were seized at the residence of room- mates Martin and Hall; (3) guns located in Dixon’s bedroom, within his reach, were seized; and (4) Johnson’s residence was searched, but the only evidence seized that had any impact in the proceedings below, were his two telephones. II. ISSUES INVOLVED The issues we are called upon to decide in this appeal are: (1) Whether the evidence obtained from wiretaps should have been suppressed for various reasons; (2) Whether a person who merely attempts to purchase a drug for his own use from a member of a conspiracy to sell that drug can be convicted, by that act alone, of facilitation of a conspiracy within the meaning of 21 U.S.C. § 843(b) ; (3) Whether the search of Johnson’s residence was ille- gal, justifying reversal; (4) Whether the failure of Dixon’s motion for severance or mistrial was reversible error; (5) Whether the admission into evidence of guns found in Dixon’s apartment was reversible error; and (6) Whether there was sufficient evidence to support Andrews’s conviction for possession of cocaine with the intent to distribute. A-6 IV. WIRETAP ISSUES We turn first to the various contentions of appellants that the wiretaps were unlawful and that the evidence de- rived therefrom should have been suppressed. We are con- cerned here with both a Fourth Amendment requirement and the requirements under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510- 2520. The statutory requirements may, of course, be more restrictive than the requirements of the exclusionary rule for Fourth Amendment violations. Section 2515 of 18 U.S.C. prohibits the receipt in evi- dence of the contents of a communication, or evidence de- rived therefrom, if the disclosure would be in violation of the Act. That section is triggered by § 2518(10)(a), which provides in part: Any aggrieved person . . . may move to suppress the contents of any intercepted wire or oral communica- tion, or evidence derived therefrom, on the ground that— (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. Section 2518(1)-(8) sets out the procedures and require- ments in order to obtain a valid order to place a wiretap on the telephone and subsequent requirements of the agency following the wiretap. | A-7 A. Naming of Probable Conversers in Wiretap Appli- cation. Andrews argues that the trial court erred in declining to suppress evidence obtained through the wiretaps authorized by the orders issued on August 28 and September 30. He contends that the Fourth Amendment and 18 U.S.C. § 2518 (1)(b)(iv) and (3)(a) require that the application for wiretap authorization set forth sufficient facts to allow the issuing judge to conclude that there is probable cause to believe that each person named in the application as a probable converser is committing an offense. Andrews argues that he was named as a probable converser in the application, but that the DEA did not then have probable cause to believe that he was committing an offense. There is nothing in the Fourth Amendment that imposes a requirement of the type urged by Andrews. In United States v. Donovan, 429 U.S. 413 (1977), the Court stated: The Fourth Amendment requires specification of “the place to be searched, and the persons or things to be seized.” In the wiretap context, those requirements are satisfied by identification of the telephone line to be tapped and the particular conversations to be seized. Id. at 427, n.15. There is no constitutional requirement that the persons whose conversations may be intercepted be named in the application. Jd. Consequently, we hold that the Fourth Amendment does not require that the reasons for naming all probable conversers be shown in the appli- cation. The question concerning the requirements of the statute is not as easily resolved. The subject of our inquiry is the A-8 statutory section governing the procedure for obtaining wiretap authorization, 18 U.S.C. § 2518. An application for an order authorizing a wiretap must include the “identity of the person, if known, committing the offense and whose communications are to be inter- cepted”. 18 U.S.C. § 2518(1) (b) (iv). The judge to whom the application is submitted may enter an order authorizing a wiretap if the application shows that “there is probable cause for belief that an individual is committing, has com- mitted, or is about to commit” an offense enumerated in § 2516. 18 U.S.C. § 2518(3)(a). In United States v. Kahn, 415 U.S. 143, 150-155 (1974), the Supreme Court held that the investigative agency does not have to name in its ap- plication a probable converser who it does not have prob- uhie cause to believe is engaged in the criminal activity under investigation. The Court later held in Donovan that § 2518(1)(b)(iv) does require the investigative agency to name in its application every probable converser who it has probable cause to believe is engaged in the criminal activity under investigation. 429 U.S. at 423-28. In effect, Andrews now urges us to hold that § 2518(1)(b)(iv) and (3)(a) require that only those for whom such probable cause is shown may be named in the application. We dis- agree. At the outset we note that there is nothing in the word- ing of the statute itself that compels us to adopt Andrews’s position. Section 2518(1)(b) (iv), as construed in Donovan, describes those persons who must be named in the appli- cation; it does not expressly prohibit the investigative agency from naming other individuals in the application. Section 2518(3)(a) permits a judge to issue an authoriza- A-9 tion order upon a showing that probable cause exists with respect to an individual; it does not expressly require a similar showing with respect to each person named in the application. A restriction that the investigative agency can name in its application only those for whom probable cause exists is not consistent with the policy of Title III. The provisions of Title III were designed to accommodate two competing policy objectives: (1) the authorization of electronic sur- veillance as a weapon against organized crime; and (2) the protection of individual privacy. Kahn, 415 U.S. at 151. Section 2518(8)(d) of the Act requires that each person named in the application be given notice (which is denomi- nated as an “inventory”) within a reasonable time after the entry of the authorization order or the denial of the application, which shall contain the fact of the entry of the order, the date of the entry and the fact that during the period, wire and oral communications were or were not intercepted. It is mandatory to send the notice to those persons named in the application, but it is discretionary as to whether notice is to be sent to persons not named in the application. Therefore, the policy of protecting persons from unreasonable invasions of privacy is furthered by naming in the application all those persons likely to have their conversations intercepted, whether or not probable cause exists as to them, because those persons will benefit from the mandatory statutory notice requirements. In eases where probable cause is doubtful as to some con- versers, an investigative agency should be encouraged to name more, rather than fewer, persons in the application. A-10 In addition, the competing policy objective of aiding law enforcement would be frustrated if an investigative agency were required’ to make a showing of probable cause for every person named in the application. Under Donovan, the agency is required to name all persons for whom a showing of probable cause can be made. If the agency order can later be challenged on the ground that probable cause did not exist for one or more of the expected conversers, an impossible burden of exactness is imposed upon the agency in making a decision on which reasonable minds may differ. The policy behind the statute is best served by allowing latitude in naming an expected converser, even though probable cause as to that person ultimately may not be found. In rejecting the argument that a defendant must be arrested when probable cause is first established, so that the right to counsel during questioning would be triggered, the Supreme Court considered the dilemma posed by that argument; ~