# Amicus Brief — Frank Thompson, Jr. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0301%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1983 - **Citation:** 461 U.S. 961 ## Text ‘. \ & No. 82-1199 IN THE Supreme Court of the United States OCTOBER TERM, 1982 > FRANK THOMPSON, JR., Petitioner, —vVsS.— UNITED STATES OF AMERICA, Respondent. MOTION OF THE AMERICAN CIVIL LIBERTIES UNION FOR LEAVE TO FILE AND BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONER’S APPLICATION FOR A WRIT OF CERTIORARI BURT NEUBORNE Counsel of Record American Civil Liberties Union Foundation 132 West 43rd Street New York, New York 10036 (212) 944-9800 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 FRANK THOMPSON, JR. Petitioner vs. UNITED STATES OF AMERICA, Respondent MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONER'S APPLICATION FOR A WRIT OF CERTIORARI The American Civil Liberties Union respectfully moves for leave to file the annexed brief amicus curiae in support of petitioner's application for a writ of certiorari to the United States Court of Appeals for the Second Circuit. The American Civil Liberties Union is a nationwide, non-partisan organization of over 250,000 members dedicated to the protection of fundamental liberties guaranteed by the Constitution. One of the basic guarantees of our Constitution assures Americans that they will not be the tar- get of intrusive governmental investi- gative techniques in the absence of particularized information, subject to effective verification by an independent authority, tending to suggest that the target of the investigation is involved in, or possesses information concerning, a violation of law. When the investi- gative techniques in question are the traditional ones of search, seizure or arrest, this Court has painstakingly evolved a legal structure designed to shield Americans from arbitrary fishing expeditions based upon subjective consid- erations which do not rise above the level of hunch. E.g. Delaware v. Prouse, » 44 « 440 U.S. 648 (1979); Brinegar v. United States, 338 U.S. 160 (1949); Payton v. New York, 445 U.S. 573 (1980). In such traditional contexts, the government must, generally, obtain a warrant from a neutral magistrate upon a showing of probable cause before initiating the intrusive investigative technique. Even in the less structured context of investi- gative street stops, this Court has re- quired an investigating officer to demon- strate an "“articulable suspicion" and not a mere hunch, as a pre-condition to con- ducting intrusive investigative activity. E.g. Terry v. Ohio, 392 U.S. 1 (1968). This petition arises out of a non- traditional investigative technique -- the Abscam investigation, pursuant to which selected members of Congress were encouraged by a government informant - iii - and corrupt middlemen to commit an unlaw- ful act while being videotaped by the FBI at a pre-selected location. While the Abscam technique is non-traditional, it is clearly as intrusive as a garden variety search which would have required a warrant and probable cause; and far more intrusive than a street stop which would have required a demonstration of articulable suspicion. In contrast with those more traditional forms of investi- gation, the Abscam technique is subject to no effective restraints whatever. No effective mechanism existed to assist in selecting the targets; no effective controls existed on the conduct of the investigation. In a very real sense, the investigation, with its extraordi- narily intrusive techniques verging on entrapment and its sensitive separation -iv- of powers overtones, unrolled on the basis of the hunches and improvisa- tions of totally unrealiable govern- ment informants, corrupt middlemen and the lower echelon law enforcement per- ~ sonnel who work with them. Putting aside the serious separation of powers and en- trapment issues raised by the Abscam investigation, it seems clear that if non-traditional investigative techniques such as those used in Abscam are to supplement the traditional law enforce- ment arsenal, this Court should consider the extent to which the Fourth Amendment and the Due Process Clause require a degree of procedural protection surround- ing their use. Specifically, at least the following questions require resolu- tion by this Court: 1) What substantive standard should be met before a law enforcement agency may uti- lize techniques similar to those used in Abscam in the investigation and detection of crime? 2) What procedures should be required in order to auth- orize intrusive investiga- tive techniques similar to those used in Abscam? 3) What standards and proce- dures should exist in con- nection with the targeting of a specific individual or group for intrusive investi- gative techniques similar to those used in Abscam? The current state of the law fails to provide adequate guidance to con- scientious law enforcement officials and, because of its lack of precision, virtually invites abuse. Indeed, the conduct of the Abscam investigation it- self demonstrates that hunch and subjec- tivity dominated the process. Accord- ingly, the American Civil Liberties -vi- Union respectfully moves for leave to file a brief amicus curiae in support of petitioner's application for a writ of certiorari in the hope that the Court will utilize this opportunity to estab- lish badly the use of techniques needed guidelines governing newly evolved investigative similar to those used against the petitioner. February 9, Respectfully submitted, VY fu% Pm, BURT EUBORNE Counsel of Record American Civil Liberties Union Foundation 132 West 43rd Street New York, New York 10036 (212) 944-9800 1983 *. 985 \° TABLE OF CONTENTS Page MOTION FOR LEAVY TO FILE BRIEF AMICUS CURIAE a 0066000 6006600 69.0066068. 5 TABLE OF AUTHORITIES... .cccecseeseee ix INTEREST OF AMICUS CURIAE....seeeeeeeee L STATEMENT OF THE CASE....ceccccecseseee Ll REASONS FOR GRANTING THE WRIT......+++- 5 INTRUSIVE INVESTIGATIVE TECH- NIQUES SIMILAR TO THOSE USED IN THE ABSCAM INVESTIGATION MAY NOT BE UTILIZED IN THE ABSENCE OF: A. Facts or Circumstan- ces Which Reasonably Indicate That the In- vestigation Will Detect Criminal Activity That is Occurring or Likely To Occur in The Absence of the Investigation; B. Reliable Facts or Cir- cumstances Indicating That a Specific Target is Engaging, Has En- gaged, or is Likely To Engage in the Illegal Activity in Question; and C. A Determination By An Independent Authority, Preferably a Neutral Magi- strate, That the Prerequi- sites Set Forth in (A) and (B) Exist. - viii - TABLE OF AUTHORITIES Cases: Page Brinegar v. United States, 338 U.S. 160 C1969) wccvceececeseses iii Delaware v. Prouse, 440 U.S. 648 (1979) wecccccvcccecoces ii Hampton v. United States, 425 Uses 484 (1976) wccccccceccceces 6 Hoffa v. United States, 385 U.S. 293 (1966) ~.ccocccvecesseseos 5 Lopez v. United States, 373 U.S. 427 (L963) ccccecoesseceeess 6 On Lee v. United States, 383 um FF 747 (1952) cccoccenvescesee 6 Payton v. New York, 445 U.8. 573 (1960) .cccccveccccccse saa Terry v. Ohio, 392 U.S. 1 (1968) ccccececesessscees £34 United States v. Russell, 411 U.S. 423 (1973) cccccccescesesce 6 United States v. White, 401 Diwe 545 (1974) coccscecceecesse 5 Statutes 18 Us8eCe § 201 [Oa occcscneeeestnsenes 1 18 DaweGs § 203(B) cccccevcesenecessese 1 - ix - Other Authorities Page F.B.1. Undercover Guidelines: Over- sight Hearings Before Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee, 97 Cong., lst Sess. (G.P.O. Serial MO. 16) ccocccccccvcccccceccceeccccese &@ Report to the Select Committee to Study Law Enforcement Undercover Activities of the Review By Its Counsel of the Confidential Files Of the F.BoZ. cocccccccccce Lydeh Testimony Before the Senate Select Committee to Study Law Enforce- ment Undercover Activity ‘eeeeeeeenenenene 4 Amsterdam, Perspectives on the Fourth Amendment, 58 U. Minn. L. Rev. 349, 406-09 CAG7E) cosceeseccee 8 INTEREST OF AMICUS CURIAE The interest of the amicus curiae is set forth in the foregoing motion. STATEMENT OF THE CASE The petitioner is a former member of Congress who was convicted of bribery (18 U.S.C. § 201 (a)) and conflict of in- terest (18 U.S.C. § 203 (a)) arising out of the Abscam investigation. The Abscam investigation evolved in three phases. Its initial phase involved a traditional "sting" operation designed to apprehend persons dealing in stolen or contraband property. See generally, Sections III and IV, Report to the Select Committee to Study Law Enforcement Undercover Ac- tivities of the Review By Its Counsel of the Confidential Abscam Files of the F.B.1I., pp.5-12, August 18 1982. The principal F.B.I. informant, Mel Weinberg, and local bureau agents escalated the in- vestigation in the fall of 1978 into a general investigation into political cor- ruption in New Jersey. Ibid, p.7; Testimony of William Webster, F.B.I. Undercover Guide- lines: Oversight Hearings Before Sub- committee on Civil and Constitutional Rights of the House Judiciary Committee, 97 Cong., lst. Sess. (G.P.O. Serial No. 18), April 20, 1982, p.20. Finally, in January, 1980, the investigation broadened into a general investigation into Congressional corruption. Ibid, p.1ll. See also, Webster, Ibid, p.23. At the initial "sting" level, little or no danger of abuse existed, since the illegal activity was narrowly defined and the targeted parties involved were self-selecting. However, when the investigation moved to the area of politi- cal corruption in New Jersey and, event- ually, in the United States Congress, serious issues are raised as to whether a suf- ficient factual predicate existed to war- rant the expanded investigation in general and the choice of specific targets in particular. The decision to zero in on political corruption, first, in New Jersey, and later, in the Congress may or may not have been based on more than hunch and rumor. Certainly, however, the choice of specific targets was seriously flawed, since the principal decisions as to spe- cific targets were made by corrupt mid- dlemen and an unreliable F.B.I. infor- mant. The net effect of the laxness in selecting specific targets was the im- proper involvement of innocent persons, such as Senator Pressler and Congressman Hughes, in the investigation. Indeed, it appears that the principal, if not the only control on the choice of specific targets was the F.B.I.'s reliance on the self-interest of corrupt middlemen to produce equally corrupt members of Con- gress. See, e.g. Senate Select Committee to Study Law Enforcement Undercover Ac- tivities, pp.118-120 (Testimony of Irvin B. Nathan); pp. 27-28 (Testimony of Michael Wilson). See generally, Section X, The Use of Unwitting Middlemen as a Tech- nigue for Identifying Suspects and Estab- lishing Reasonable Suspicion in Report to the Select Senate Committee By Its Counsel, pp.28-34. Thus, whatever the merits of the Abscam technique as a means of investi- gating consensual crime, it seems clear that no effective mechanisms existed to determine whether a sufficiently high pro- bability of criminal activity existed -- either as a general matter, or with re- ference to specific targets -- to justify its use. REASONS FOR GRANTING THE WRIT Although the Court has evolved an elaborate structure to protect individ- ual liberty in the context of searches (including wiretapping), seizures, arrests and street stops, it has provided virtu- ally no guidance in the areas of less traditional investigative techiques, such as the use of undercover agents and pre- text crimes. E.g. United States v. White, 401 U.S. 545 (1971); Hoffa v. United States, 385 U.S. 293 (1966); On Lee v. United States, 383 U.S. 747 (1951); Lopez v. United States, 373 U.S. 427 (1963), Hampton v. United States, 425 U.S. 484 (1976); United States v. Russell, 411 U.S. 423 (1973). The net result has been the growth of a highly intrusive investi- gative technique with virtually no con- trols on its use. In the Abscam case, the technique involved, not only the use of undercover agents and pretext crimes, but the sound and video recording of targets. When, amicus submits, an investigative technique achieves such a level of in- trusiveness, this Court should not ignore the capacity of abuse latent in its mis- use. Law enforcement personnel at every level now have carte blanche to engage in intrusive undercover activity reaching the verge of entrapment with no judicial controls. This Court should grant the petitions for certiorari arising out of the Abscam convictions and enunciate the necessary substantive and procedural rules to permit innovative law enforcement activity to flourish without endangering basic Fourth Amendment values. In fact, such rules are relatively uncomplicated and generally accepted. First, the Court should recognize that the Fourth Amendment and the Due Process Clause impose a degree of restraint on the use of intrusive investigative tech- niques. Second, the Court should reiter- ate that such techniques cannot be used in the absence of facts or circumstances which reasonably indicate that they will detect criminal activity which is occurring or is likely to occur in the absence of the investigation. Third, the Court should admonish that such techniques cannot be used against a specific target in the absence of particularized information linking the target to criminal activity. Finally, the Court should insist upon a procedural mechanism to assure that sub- stantive standards governing the use of such techniques are being respected Such a set of Fourth Amendment guide- lines would impose no restrictions on legitimate law enforcement activity, while providing badly needed protection against arbitrary or bad faith investiga- tions. Amsterdam, Perspectives on the Fourth Amendment, 58 U. Minn. L.Rev. 349, 406-09 (1974). CONCLUSION The petition for certiorari should be granted. Respectfully submitted BURT NEUBORNE Counsel of Record JERRY BERMAN American Civil Liberties Union Foundation 132 West 43rd Street New York, New York 10036 (212) 944-9800 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0301%3A5. Public record. Not legal advice.