# Petition — Connecticut v. Thompson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1006

## Text

83-846 [FitrD

No. 83- NOV 18 1983

—— eee ee Orr eae ee ee re ee Ce eH -_-CD- -

SUPREME COURT OF THE UNITED STATES

October Term, 1983

THE STATE OF CONNECTICUT,
Petitioner,
Vv.

NEIL J. THOMPSON, JAMES C. BLACK,
PRANK P. LEPORE, ROBERT E. PARKER, JR.,
Respondents.

On Writ of Certiorari to the
Supreme Court of the State of Connecticut

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF
CONNECTICUT

FRANCIS M. McDONALD
State's Attorney and Counsel of Record

BRADFORD J. WARD
Assistant State's Attorney

300 Grand Street
P.O. Box 1245
Waterbury, CT 06702
(203) 756-4431

QUESTION PRESENTED

Ba May a state court suppress all
wire interceptions because the police
officers overheard conversations to which
others than the one person named in the
interception order were parties, when the
officers had applied for an order
authorizing such interceptions and the
application was approved without
conditions by the panel of judges issuing

the wiretap order?

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......0cee0eee0e8 A

TABLE OF AUTHORITIES... ..ccccccccece ALi

OPINIONS BELOW... ..cccccvvccccee ose 2
JURISDICTION... .cccccsvveee coccccces &@
CONSTITUTIONAL PROVISIONS........... 3
STATEMENT OF THE CASE.......2eeee005 5

DUE Ce ccesccec cd essences osoececoece OD
MBBS BELOW. cc sccccccccce See ewecat

ARGUMENT:

I. The Policies Underlying the
Exclusionary Rule Do Not
Require the Suppression of
All Wire Interceptions Under
the Circumstances of this

Li sash sey soe 6 6 08 err eh wi
oe ae Petre. eee eC:
APPENDIX

ii

TABLE OF AUTHORITIES

Page
CASES
Berger v. New York,
See Bib. SL (A967) cccrcccseveseveccs 23

Commonwealth v. Sheppard,
387 Mass. 488, 441 N.E.2d 725
(1982), cert. granted,
* 0.8. -, {03 &.Ct. 35364 (1963)...25

Katz v. United States,
EG OR ER Sy a ay oe Pe 23

Scott v. United States,
a. als ROO CROPPER s cb obs oe eel 19, 24

State v. Thompson,
191 Conn. 360, 464 A.2d 799
65. ° | re 2, 19, 20, 22, 23, 26

iii

CONSTITUTIONAL PROVISIONS

Page

Constitution of the United States,

a, Pre riey rs ae ire~e
Constitution of the United States,

Amendment XIV..... Terre y sre TT ee

STATUTES
ee atl skee SRR C al e5. 62. re ae
iv

No. 83-

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1983

THE STATE OF CONNECTICUT,
Petitioner,
V e

NEIL J. THOMPSON, JAMES C. BLACK,
FRANK P. LEPORE, ROBERT E. PARKER, JR.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF
CONNECTICUT
The petitioner, the State of
Connecticut, respectfully prays that a
writ of certiorari issue to review the
judgment of the Supreme Court of the

State of Connecticut entered in this

proceeding on September 6, 1983.

OPINIONS BELOW

The opinion of the Connecticut
Supreme Court is reported at 191 Conn.
360, 464 A.2d 799 (1983), and appears in
the appendix hereto. (Appendix A). The
decision of the Connecticut Superior
Court granting the motions to suppress
appears in the appendix hereto.

(Appendix B).

JURISDICTION

The decision of the Supreme Court of
the State of Connecticut was entered on
September 6, 1983. Motions to reargue
were denied by the Connecticut Supreme
Court on September 21, 1983. This
Court's jurisdiction is invoked under 28

U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS

Constitution of the United States,
Amendment IV:

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, supported by oath or
affirmation, and particularly describing
the place to be searched, and the persons

or things to be seized.

Constitution of the United States,
Amendment XIV, Section 1:

All persons born or naturalized in
the United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the state wherein
they reside. No state shall make or
enforce any law which shall abridge the

3

privileges or immunities of citizens of
the United States; nor shall any state
deprive any person of life, liberty or
property, without due process of law; nor
deny to any person within its
jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

FACTS

On March 9, 1973, an application to
intercept telephone conversations over
two public telephones, one inside and one
outside the Austin House Hotel in
Terryville, Connecticut, was filed with
the wiretap panel. The application
recited that large quantities of brown
"Mexican" heroin were being purchased by
police undercover agents from one Albert,
who was using both phones to contact his
source of this drug, and sought to
intercept his communications and those of
others unknown over a period of ten days
for twenty-four hours a day.
(Defendant's Ex. 1A-2E). That
application was approved on March 15,
1973 as wiretap order number (73-03.

(Defendant's Ex. lA-2E).

Before the issuance of the Austin
House order, agents of the Regional
Narcotic Squad had on successive
occasions purchased for large sums of
money wholesale quantities of brown
heroin from Albert. One of these sales
occurred in Plainville, Connecticut, on
Dewey Street where Albert went to obtain
the heroin. This type of heroin had not
previously been found in the area and was
known to have been processed in Mexico.
Albert's activities indicated a steady
supply of this narcotic drug.
(Defendant's Ex. 1A-2E).

Albert himself indicated to- the
agents that he used the public telephones
at the Austin House Hotel, where he then
lived, to contact his source for the
drug. Because of Albert's addiction and
financial status it was apparent that his
source, rather than Albert, had access to
the drugs and the cash to carry on the

6

international trafficking. Albert had so
Stated to the agents. Joseph LeBlond was
also associated with Albert in
distributing heroin to agents and was
associated with Albert in distributing
heroin from Mexico, getting the heroin
from the same unknown source.
(Defendant's Ex. 1A-2E).

Thereafter from March 15 to March 22,
when a further extension of the order was
sought, the intercepting officers
monitored both telephones for twenty-four
hours a day. All calls were intercepted,
recorded, and entered into a log. This
log was attached to the application to
extend the original order and did reflect
the continuous monitoring to the 22nd of
March. (Defendant's Ex. 1A-2E). The
wiretap extension was granted on March

23, 1973. (Defendant's Ex. 2A).

While the interceptions were being
made, the undercover agents’ purchased
more heroin some of which was supplied to
Albert for resale by one Allen LaFleur,
who at the time was accompanied by
Kathleen Paradis, his girl friend with
whom he was living. (Defendant's Ex. 2E,
p.2, para. 6). The agents also bought
heroin which LaFleur sent to an agent
while refusing to meet directly. The
agents observed that both Albert and
LaFleur were young, had no wealth, and
from conversations were merely runners
and not the suppliers themselves of the
Mexican heroin. (Para. 8). (Defendant's
Ex. 2A).

The wire interceptions also reflected
that involved in the operation were
Albert, LaFleur, “Ron,” “Frank" and “the
old man." (Defendant's Ex. 3A-3E).

In the meantime, the undercover
agents, who were not on the disclosure

list because they were local _ police
officers, had heard Kathleen Paradis
direct an unknown male to call 747-5361
to reach Allen LaFleur from the Austin
House since one of the agents wanted to
buy heroin from LaFleur. That number was
also heard dialed from the interior phone
at the Austin House six times without
answer by the wire intercepting officers
that same day. (Defendant's Ex. 3A-3E).

Telephone number 747-5361 was found
to be listed with the telephone company
to Daniel A. Wrisley, aka Daniel A.
Risley, at 17 Dewey Place, Plainville.
(Defendant's Ex. 3A-3E).

During their previous contacts with
LaFleur, the undercover agents had been
given the telephone number 589-7770 for
Kathleen Paradis. This telephone was
located on Johnny Cake Mountain Road,
Burlington, Connecticut, listed to
Kathleen Paradis, but in a home rented by

9

a Daniel Wrisley. Wrisley was known to
the State Police to visit Arizona twice a
week by air and to have a record of
marcotics arrests in Connecticut and
Arizona. (Defendant's Ex. 3A, pp.23,
26). The Burlington telephone was
removed on March 19, 1973, but toll
records reflected previous collect calls
from Arizona. (Defendant's Ex. 3A).

The undercover agents also learned in
conversation with Albert that his source
of heroin were two partners, “Danny” an
addict and "Skippy" a non-addict, who
regularly went to Arizona for heroin
which they brought to Connecticut in
large quantities. (Defendant's Ex. 3A).

The continued wire interceptions on
the telephones at the Austin House also
revealed that the telephone (589-7770)
had been removed because of fear of a

wiretap and that "Frank" had taken

10

"Allen" and “Danny" to the airport to get
more dope. (Defendant's Ex. 3A).

On March 28, 1973, an application to
intercept telephone communications over
the telephone at Wrisley's address in
Plainville was filed with the wiretap
panel and sought to intercept his
communications and others unknown over
ten days for a period of twenty-four
hours day. The application reflected
that Wrisley's associates in narcotics
trafficking were a "Skip" whose last name
and address were unknown, "Frank," last
name and address unknown, LaFleur and
Albert, and that probable cause existed
that they had sold and were selling
narcotics and were using the telephone
for that purpose. (Appendix D at 6d).
The application also requested that the
interceptions continue until the
objective of the interception, the
disclosure of Albert's, Wrisley's, and

ll

LaFleur's source of heroin, was obtained.
(Appendix D at 7d). The application was
approved on March 28, 1973 as wiretap
order number 73-04. (Defendant's Ex.
3A-3F). Thereafter, the wire
interceptions were made of calls over the
telephone at Wrisley's home. All calls
over that facility were intercepted and
recorded by the wire interception
officers. Because the interceptions did
not reveal the supplier of Wrisley and
Parker, an application to extend the
order was filed and granted on April 6,
1973. (Defendant's Ex. 4A-4D).
Thereafter, the interceptions continued
until April 14, 1973. (Defendant's Ex.
9).

While the Austin House wiretaps were
in operation, Trooper Petrowski of the
Connecticut State Police, overall
coordinator between the State Police
monitors and the Regional Narcotic Squad,

12

reviewed the maintained logs of all
intercepted communications with an eye to
the information developed by the
undercover agents. In reviewing the
intercepted logs for the inside pay phone
at the Austin House, Petrowski found 52%
or 81 of the 149 intercepted calls to be
pertinent to the investigation. Of the
remaining 68 non-pertinent calls, only 8
calls were over two minutes in duration.
Petrowski was unable to detect a pattern
of innocent communications within the
non-pertinent calls intercepted over
either Austin House phone since, in many
cases, it was not possible to detect the
callers’ identities and, therefore,
anticipate their conversations, and, in
other cases, the conversation did not
last long enough to be deemed innocent
before it concluded. (Defendant's Ex.

2A; T-1053-67).

13

The other monitoring officers who
were asked were also unable to detect
such a pattern of innocent conversations
within the calls they overheard. (T-5ll,
515-16, 747, 755, 903-04, 1314, 1317,
1514, 1554, 1562-63, 1590, 1614-15, 1631,
1651, 1689).

A twenty-four hour wiretap, Order
73-04, was also instituted upon the
telephone at premises occupied by
Wrisley, Parker, Parker's wife, and Allen
LaFleur, as the tap later revealed. Most
of the conversations relating to drugs
over that line were carried on in "drug
Slang" or code. A large scale pattern of
distribution of heroin, through "Ron” in
Bristol, Allen LaFleur, Albert and
LeBlanc in Terryville, and Robert Demicco
in Waterbury, was revealed, and
conversations relating to trips to Mexico
by way of Tuscon, Arizona, to bring back
heroin were monitored. During this tap,

14

conversations relating to the robbery and
killing of an undercover agent, whose
true identity was suspected, were
intercepted by the State Police officers.
(Defendant's Ex. 9; T-511, 515-16).
Trooper Petrowski again reviewed the
logs of intercepted communications at the
Plainville number and related those
conversations to the Austin House tap and
to the Regional Narcotic Squad
investigation. His analysis of the tapes
revealed that of the 298 intercepts under
Order 73-04, 265 or 88% were pertinent to
the investigation. Of the 33
non-pertinent calls, only 1 call was
longer than two minutes. (Defendant's
Ex. 9; T-1092-99, 1105). Again,
Petrowski and the intercepting officers
inquired of could detect no pattern of
innocent communications. (Defendant's

Ex. 9; T-1092-99, 1105). (T-511, 515-16,

15

747, 755, 1314, 1317, 1554, 1562-63,
1590, 1614-15, 1631, 1651, 1689).

Trooper Petrowski found that a
pattern of coded and occasional
references to drug trafficking developed
within the course of otherwise innocent
conversations. Such conversations showed
a far-flung operation involving many
persons, both male and female; involving
Mexico and Arizona, with airline trips
and auto rentals to bring large amounts
of heroin to Connecticut; and involving
distribution of heroin in various
Connecticut cities and towns. It was
also discovered during the wiretap that
"Skip" was the defendant Parker, a former
police officer. The interceptions
themselves showed that the principals
were fearful of a wiretap and had removed
telephones from another premises to avoid

the tap. (T-1068-90, 1093-98, 1176-99).

16

Conversations in which Wrisley,
Parker, and Thompson were participants
were overheard under Order 73-04, and
conversations in which Black and Lepore
were participants were overheard under
Order 73-03. No conversations in which
Wrisley or Parker were participants were
overheard under Order 73-03.
(Defendant's Ex. 2A; Defendant's Ex. 9).
However, there were intercepted
conversations that took place upon
Wrisley and Parker's premises under the

Austin House tap. (T-252).

RULINGS BELOW

Once the defendants were arrested
upon bench warrants alleging narcotic
violations, they filed motions to
suppress. After a lengthy evidentiary
hearing, the motion in the Parker case
was granted by the trial court.

17

The court entered an order
suppressing intercepted communications
upon the failure of the monitoring
officers to minimize the interception of
communications not subject of the
electronic surveillance order. The
court's memorandum of decision related
that the monitoring officers were not
instructed with respect to the
minimization requirement except for
privileged calls involving an attorney, a
physician or a clergyman, and the
officers did monitor nearly 100% of the
calls over the subject of the order
telephones. (Appendix B at 15b-17b).

The ruling on the motion to suppress
was the basis for the granting of a
motion to dismiss in each file, there
being no trial. Thereafter, the State
took an appeal to the Connecticut Supreme

Court, claiming that the trial court

18

misapplied the principles of Scott v.

United States, 436 U.S. 128 (1978).

The Connecticut Supreme Court
affirmed the trial court on a difterent
basis as appears in its opinion found in
Appendix A to this petition.

In its reply brief in the Connecticut
Supreme Court, the State had argued that
the officers were justified in listening
to others than those named as_- the
Subscriber to the telephone in the wire
interception order, as the officers had
requested a wider authorization (Appendix
D at ld-par. 2, 2d-par. 7, 6d-par. 18-1,
9d-par. 5) and their application had been
approved without condition (Appendix D
at 20d-par. C). This argument was also
urged on the Connecticut Supreme Court in
support of the State's motions’ to

reargue. (Appendix C).

The Connecticut Supreme Court
rejected that argument. State v.
19

Thompson, 191 Conn. 360, 377, 464 A.2d
799, 810 (1983). (Appendix A at 17a).
It also refused to consider the question
of the good faith of the officers as to
continuous monitoring of the subject
telephones. 191 Conn. at 372, 464 A.2d
at 807. (Appendix A at 12a). The
Connecticut court then applied the fourth
amendment and the exclusionary rule to
Suppress ali wire interceptions under all
wire interception orders. 191 Conn. at
374-84, 464 A.2d at 809-13. (Appendix A
at 14a-23a).

The State respectfully petitions this
Court to review the Connecticut Supreme
Court's decision as it pertains to order

number 73-04, the Wrisley order.

20

ARGUMENT

I
The Policies Underlying the Exclusionary
Rule Do Not Require the Suppression of
All Wire Interceptions Under the
Circumstances of this Case.

the officers in this case sought
authorization to intercept the
communications of a number of individuals
involved in a wide-ranging heroin
trafficking enterprise and of those
unknown. (Appendix D, Application for
Order 73-04, at Ild-par. 2, 2d-par. 7,
6d-par. 18-1, 12d-l16d-par. 13-27, 31-33).
The application was approved without
reservation by a panel of three judges
required by Connecticut law. However,
the order for interceptions also stated
the interceptions were to be of the
person identified as the subscriber of
the subject telephone. (Appendix 0D,
Order 73-04, at 20da-21d). In

21

implementing the wire interceptions, the
officers listened to every telephone call
directed to and from the subject
telephone located in a house which was
the center of the heroin ring.

The individuals involved in the
Criminal activity were listed in the
application as those engaged in heroin
trafficking, when their identities were
known. (Appendix D, Application for
Order 73-04, at 6d-par. 18-1). The trial
court had suppressed all the
interceptions because the police officers
were not instructed with regard to
minimization (Appendix B at 15b-17b),
and the Connecticut Supreme Court upheld
that action because the officers did not
limit their interception to the one
individual named in the wire interception
Order as the subscriber of the telephone,

see State v. Thompson, 191 Conn. 360,

374-80, 464 A.2d 799, 809-11
22

(1983)‘Appendix A at 14a-20a). In the
opinion of the Connecticut Supreme Court,
this violated the fourth amendment's
requirement that electronic surveillance
be authorized by a warrant issued by a
neutral judicial officer. The

Connecticut court cited Katz v. United

States, 389 U.S. 347 (1967), and Berger

v. New York, 388 U.S. 41 (1967), to this

effect. See State v. Thompson, 191 Conn.

at 376, 464 A.2d at 809-10. (Appendix A
at 15a-l6a). |

The Connecticut Supreme Court further
treated the panel's order that’ the
application was approved without
conditions as of no significance since
the order mentioned the one person, the
subscriber of the telephone as the person
whose communications were to be

intercepted. See State v. Thompson, 191

Conn. at 377, 464 A.2d at 810. (Appendix
A at 17a).

23

Avoiding the clear intent and

language of Scott v. United States, 436

U.S. 128 (1978), as no showing that a
pattern of innocent communications arose
which would allow for intelligent
minimization of interceptions, the
Connecticut Supreme Court limited the
interceptions in what was obvious from
the application and the submitted wire
interception logs a wide-ranging heroin
trafficking enterprise to that of one
individual whose phone was to be the
Subject of the order and called listening
to others a failure to minimize
interceptions calling for total
Suppression of the fruits of those
intercepts.

No others, even those unknown to the
applicants and those named using the
telephone to traffick in narcotics could
be overheard since the form, a copy of
which is set forth in Appendix D, failed

24

to include “and others unknown" in the
order, even though the officers sought
such authority in their application which
was approved.

In Commonwealth v. Sheppard, 387

Mass. 488, 441 NE 2d 725 (1982), the
officer acting in good faith reliance
upon a defective search warrant seized
evidence in a homicide investigation.
This Court granted certiorari to consider

the issue whether the evidence should

have been suppressed. Massachusetts v.
Sheppard, - U.S. -, 103 S.Ct. 3534
(1983). In this case, the officers

received what the State submits was at
least an ambiguous direction to seize
evidence. The Connecticut Supreme Court
Stated it was not ambiguous, “regardless
of its [the approval of the application
without conditions] actual meaning," and
suppressed all the evidence so
seized.

25

See State v. Thompson, 191 Conn. at 377,

464 A.2d at 810. (Appendix A at 17a).
The State of Connecticut respectfully
Submits under these circumstances no
policy supposedly served by the
exclusionary rule under the fourth

amendment requires such a drastic result.

26

CONCLUSION

For the above reasons, the State of
Connecticut asks this Court to grant a
writ of certiorari to review the decision

of the Connecticut Supreme Court.

THE STATE OF CONNECTICUT

BY S/
Francis M. McDonald
State's Attorney
Judicial District of Waterbury

BY S/
Bradford J. Ward
Assistant State's Attorney
Judicial District of Waterbury

27

APPENDIX

APPENDIX A -

APPENDIX B -

APPENDIX C -

APPENDIX D -

APPENDIX

TABLE OF CONTENTS

Decision of the
Connecticut Supreme Court

Decision of the Superior Court
(Trial Court )

Motions To Reargue and Orders
of the Connecticut Supreme Court
Denying Reargument

Application for Authority to
Intercept Wire Communications
and Order (73-04)

Page

la-23a

1b-18b

lc-8c

1d-21d

APPENDIX A

STATE OF CONNECTICUT v. NEIL J. THOMPSON
STATE OF CONNECTICUT v. ROBERT E. PARKER, JR.
STATE OF CONNECTICUT v. JAMES C. BLACK
STATE OF CONNECTICUT v. FRANK P. LEPORE
(8359)

(8360)

(8362)

(8363)

SPEZIALE, C. J., PETERS, SHEA, GRILLO and COVELLO, Js.

Argued May 4—decision release’ September 6, 1983

Information in each case charging the defendant with the crime
of conspiracy to distribute, sell, dispense, compound, and transport
with intent to sell and dispense heroin, brought to the Superior
Court in the judicial district of Waterbury, where the trial court,
McGrath, J., granted in each case the defendant's motion to sup-
press intercepted wire communications, and the court, O’Brien, J.,
rendered judgment in each case dismissing the information, from
which the state, on the granting of permission, appealed to this
court. No error.

Francis M. McDonald, state's attorney, with whom were
Bradford J. Ward, assistant state’s attorney, and, on the brief,
Austin J. McGuigan, chief state's attorney, for the appellant in
each case (state).

Maxwell Heiman, with whom were Louis S. Avitabile, John D.
Jessep, Robert M. Richards and, on the brief, William J. Tracy, Jr.,
for the appellee (defendant Parker).

Louis S. Avitabile, for the appellee (defendant Thompson).

PETERS, J. These appeals concern the extent to which the state
police are required to minimize electronic surveillance when con-
ducting telephone wiretaps pursuant to General Statutes § 54-

la

wi}

41a et seq. (wiretap statute), in the course of a narcotics investiga-
tion. In each case, the trial court dismissed informations charging
the defendants Neil J. Thompson, Robert E. Parker, Jr., James C.
Black, and Frank P. LePore with conspiracy to possess and dis-
tribute narcotics, after the defendants successfully moved, on the
basis of inadequate minimization, to suppress evidence obtained
from the wiretaps.' From the judgments of dismissal, the state
has appealed.*

1. The defendants and others were charged by a single information with
conspiracy to distribute, sell, dispense, compound, and transport with
intent to sell and dispense heroin, in violation of General Statutes § 53a-
48 and 19-480a (now § 21a-278). The defendant Parker's motion to
suppress the contents of intercepted wire communications was granted
by the trial court, McGrath, J., on September 6, 1974, after an extensive
evidentiary hearing. The trial court based its suppression order entirely
on the state’s failure to minimize, and rejected the defendant's claims
(a) that General Statutes § 54-41a et seq. violates the fourth amend-
ment to the United States constitution and (b) that the police failed to
make timely return of the tape recordings to the issuing panel, in viola-
tion of General Statutes $ 54-41i. The state’s motion to reargue the
suppression motion was denied by the court, Levine, J., on July 22, 1976.
Thereafter the defendant moved to dismiss the information, arguing that
the facts alleged in the affidavit supporting the bench warrant for his
arrest were based on the suppressed evidence. The motion to dismiss
was granted by the trial court, O’Brien, J., on July 28, 1976.

Also on July 28, 1976, the trial court O’Brien, J., granted the motions
of the defendants Thompson, Black and LePore to suppress evidence
obtained in the same wiretaps, besed on the suppression order in the
Parker case. Accordingly, the informations in those cases were dismissed
as well. The state thereafter obtained permission to file a single brief
for all four appeals, having conceded that the prosecutions arose from
the same factual situation. Of the defendants, only Parker and Thompson
filed briefs; Thompson, Black and LePore indicated their willingness to
rely on the Parker brief.

2. The delay in the filing of the state’s brief in these cases prompted this
court to issue, sua sponte, a decree nisi on October 2, 1979, dismissing
the state's appeal for failure to prosecute with proper diligence, to take

2a

eo

The trial court, McGrath, J., in its memorandum of decision,
found the following facts, now undisputed, concerning the wire-
taps at issue in this case: On March 9, 1973, the state’s attorneys
for Litchfield county and New Haven county at Waterbury applied
to a three judge panel for permission to intercept wire communi-
cations, pursuant to General Statutes § 54-41b.2 The application
sought authorization to tap two public pay telephones, one located
in the lobby of the Austin House Hotel in Terryville and one
located just outside the hotel, in order to overhear the conversations
of Arnold Albert “and others unknown.” The application con-
tained an affidavit purporting to establish the necessity for the pro-

effect unless the state filed its brief by November 15, 1979. The state
complied with the decree, explaining the delay as the result of prepara-
tion of the transcript from the lengthy suppression hearing.

The case files disclose no attempt by the defendants to have the appeals
dismissed due to the delay. After the state submitted its brief, the de-
fendants obtained numerous extensions to file their own briefs. On
December 2, 1980, this court, sua sponte, issued a nisi order, subse-
quently rescinded, directing judgment against the defendant LePore for
failure to defend the appeal with proper diligence.

At oral argument, we voiced a concern that the time which has elapsed
since the investigative phase of these matters might render unlikely a
prosecution at this late date. The state offered assurance, however, that
in the event the present appeals are resolved in its favor, the state in-
tends to proceed in its prosecution of the defendants.

3. “[ General Statutes] Sec. 54-41b. APPLICATION FOR ORDER AUTHORIZ-
ING INTERCEPTION. The state's attorney for the judicial district in
which the interception is to be conducted may make application to a
panel of judges for an order authorizing the interception of any wire
communication by investigative officers having responsibility for the
investigation of offenses as to which the application is made when such
interception may provide evidence of the commission of offenses in-
volving gambling, bribery, violations of section 53-395, violations of
section 21a-277 or felonious crimes of violence.”

3a

posed wiretap.* This affidavit alleged: that Albert and others, in-
cluding Albert’s partner Joseph LeBlond, were importing Mexican
heroin into the state and selling it; that Albert and LeBlond were
residing at the Austin House Hotel; that Albert used its two public
telephones for narcotics transactions; and that the records of calls
made from the lobby telephone indicated a continuous pattern of
long distance calls to persons in Connecticut known to be heroin
dealers and users. The application asked, therefore, for a ten day
tap, for twenty-four hours each day, of both public telephones in
order to discover the source of Albert’s heroin and the extent of his
heroin trafficking. The affidavit stated in an amendment, filed on
March 14, 1973, that those officers who would conduct the wiretap
had been trained in electronic surveillance by the Connecticut,
New York or New Jersey state police departments.

The panel, on March 15, 1973, issued order 73-03 “to intercept
the telephone communications of Arnold Albert residing/having
his place of business at: Austin Hotel, Plymouth, Conn., from 5
p.m. on 15 March 1973 to 5 p.m. on 25 March 1973.” The order
contained the statutory requirement that the surveillance be “con-

4. “[General Statutes] Sec. 54-41c. INFORMATION IN APPLICATION.
Each application for an order authorizing the interception of a wire
communication shall be made in writing upon oath or affirmation to a
panel of judges. Each application shall include the following informa-
tion: ... (2) the identity and qualifications of the investigative officers
or agency for whom the authority to intercept a wire communication is
sought; ... (5) ... (A) details as to the particular offense that has
been or is being committed, (B) a particular description of the nature
and location of the facilities from which or the place where the com-
munication is to be intercepted, (C) a particular description of the type
of communications sought to be intercepted, (D) the identity of the
person, if known, who has committed or is committing the offense and
whose communications are to be intercepted.”

4a

<a

ducted in such a way as to minimize the interception of communi-
cations not otherwise subject to interception . . . .”*

In the order itself and in the documents accompanying the
order,© only Albert was identified as the person whose conversa-
tions were to be intercepted. Although the order indicated gen-
erally that the state’s application had been approved without con-
dition, the order did not expressly authorize interception with
respect to “others unknown,” which the state’s application had
sought.

The wiretap operations pursuant to the authorized interception
of the public telephones at the Austin House Hotel led to a request
for a ten day extension of order 73-03. The wiretap panel author-
ized an extension on the same terms as the original order. There-
after, on the basis of intercepted evidence that a telephone in

5. “[ General Statutes] Sec. 54-4le. STATEMENT BY PANEL ON ISSUANCE
OF ORDER. CONTENTS OF ORDER. Each order authorizing the intercep-
tion of any wire communication shall be accompanied by a written
statement of the issuing panel setting forth in detail its determination
made in accordance with the provisions of section 54-41ld and the
grounds therefor and shall specify: (1) The identity of the person, if
known, whose communications are to be intercepted; (2) the nature
and location of the communication facilities as to which or the place
where authority to intercept is granted; (3) a particular description of
the type of communication sought to be intercepted, and a statement of
the particular offense to which it relates; ... (11) ... Every order and
extension thereof shall contain a provision that the authorization to in-
tercept shall be executed as soon as practicable, shall be conducted in
such away as to minimize the interception of communications not other-
wise subject to interception in accordance with the provisions of this
chapter, and shall terminate upon attainment of the authorized objec-
tive, or in any event within fifteen days next succeeding the date of
issuance of such order.” (Emphasis added. )

6. In addition to the order itself, the panel is required to prepare a state-
ment pursuant to Genera! Statutes § 54-4le (see footnote 5, supra) and
a report to be submitted to the chief court administrator. General
Statutes § 54-41n.

Sa

Plainville was being used to conduct narcotics operations, the state
applied for a second wiretap order. In this application, the state
sought “to intercept the wire communications of Daniel A.Wrisley,
a/k/a Daniel A. Risley and others unknown” over the telephone
listed in his name, in light of evidence procured from the 73-03
wiretap, and elsewhere, which ind: ated that Wrisley’s telephone
was being used for narcotics transactions. The application again
stated, as had the application for 73-03, that the monitoring
officers for the proposed wiretap had been trained in electronic
surveillance by the Connecticut, New York or New Jersey state
police. The three judge panel approved the application and issued
wiretap order 73-04 but again restricted its operation to Wrisley
personally, furnishing express authority only “to intercept the
telephone communications of (subscriber): Daniel A. Risley
residing/having his place of business at: 17 Dewey Place, Plain-
ville, Conn., from 6 p.m. on 28 March 1973 to 6 p.m. on 7 April
1973, inclusive, during 24 hours of each day.” Surveillance pur-
suant to order 73-04 resulted in a successful application to the wire-
tap panel for a ten day extension of that order. In its extension
application, the state relied in part on potentially incriminating
conversations, to which Wrisley was not a party, of another person
(defendant Parker) who was using the Wrisley telephone to con-
duct narcotics trafficking. The extension of order 73-04 modified
only its date of expiration.

The trial court found that surveillance pursuant to the authorized
wiretaps took the form of indiscriminate listening to all communi-
cations on the tapped telephones. Although the monitoring equip-
ment could have been shut off or turned down upon a determina-
tion that an ongoing conversation was innocent, the police officers
assigned to the wirtaps had received little or no instruction with
respect to the statutory requirement of minimization. At most,

6a

some officers were instructed not to monitor privileged conversa-
tions in which one party was a clergyman, doctor or lawyer.”
Consequently, with the exception of a single call involving a
doctor, every call made over the tapped telephones, the public
telephones under order 73-03 and the private telephone under
order 73-04, was overheard and recorded in full. All calls were
summarized in written logs maintained by the monitoring officers.

Although the state argued that narcotics investigations require
unlimited interceptions because initially innocuous conversations
may subsequently turn to narcotic related subjects and may use
narcotic related code words, the trial court concluded that the sur-
veilling agents had failed to comply with the minimization man-
dates of the wiretap orders themselves and of the statute. The court
acknowledged that assessment of minimization depended “upon
the facts and circumstances of each case.” It recognized the prac-
tical difficulties of minimization but refused nonetheless to limit
the responsibility to minimize to privileged communications. Be-
cause a communication once seized, no matter how wrongly, can
never be given back, the court noted that “the right of privacy
protected by the fourth amendment has been more invaded where
a conversation which can never be returned has been seized than
where a physical object which can be returned has been seized.”
On this basis, the trial court granted the defendants’ motions to
suppress the evidence obtained through the state’s electronic sur-

7. “[ General Statutes} Sec. 54-4lh. PRIVILEGED WIRE COMMUNICATIONS;
ISSUANCE OF ORDER AND INTERCEPTION PROHIBITED. If the facilities
from which, or the place where, the wire communications are to be
intercepted are being used, or are about to be used, or are leased 0,
listed in the name of, or commonly used by, a licensed physician, an
attorney-at-law or a practicing clergyman, no order shall be issued and
no wire communications shal] be intercepted over such facilities or in
such places. No otherwise privileged wire communications intercepted
in accordance with, or in violation of, the provisions of this chapter shall
lose their privileged character, nor shall any evidence derived therefrom
be used for any purpose.”

7a

veillance. The informations against the defendants were thereafter

The state raises three issues on appeal. First, it argues that, in
determining that the monitoring officers failed to comply with the
minimization requirement, the trial court applied an incorrect
standard, focusing on the subjective intent of the officers rather
than on the objective reasonableness of their conduct under all the
circumstances. Second, it argues that, under the circumstances of
the present case, it was not objectively unreasonabie for the officers
to listen to all conversations during the conduct of the wiretaps.
Third, it argues that even if the wiretaps were conducted in viola-
tion of the minimization requirement, the proper remedy was the
suppression only of those conversations which would not have
been overheard had proper minimization been effected. We find
no error.

I

The state’s first claim of error addresses the standard by which
compliance with the minimization required is to be measured. The
state maintains that the trial court mistakenly relied on a subjective
federal standard which the United States Supreme Court subse-
quently rejected in Scott v. United States, 436 U.S. 128, 98 S.
Ct. 1717, 56 L. Ed. 2d 168, reh. denied, 438 U.S. 908, 98 S. Cr.
3127, 57 L. Ed. 2d 1150 (1978). Interpreting the minimization
requirement of 18 U.S.C. § 2518 (5) (1976 Ed.),® Scott held
that the federal statute was not necessarily violated by failure to
make good faith efforts to comply with the statute’s requirement

8. 18 US.C. § 2518(5) provides in relevant part: “Every order [ entered
under this section] and extension thereof shall contain a provision that
the authorization to intercept shall be executed as soon as practicable,
shall be conducted in such a way as to minimize the interception of
communications not otherwise subject to interception under this chap-
ter, and must terminate upon attainment of the authorized objective,
Or in any event in thirty days.”

8a

for minimization. Id., 135-36. Although the record in Scott
showed that all conversations over the tapped telephones were
recorded and only 40 percent were related to the stated subject of
the investigation, the Supreme Court held that: “The statute does
not forbid the interception of all nonrelevant conversations, but
rather instructs the agents to conduct the surveillance in such a
manner as to ‘minimize’ the interception of such conversations.
Whether the agents have in fact conducted the wiretap in such a
manner will depend on the facts and circumstances of each case.”
Id., 140.

The state argues that the trial court failed to follow the rule in
Scott because it attributed dispositive weight to the police officers’
indiscriminate listening to all intercepted communications over the
tapped telephone lines. We note that the trial court also stated
that resolution of the minimization question depended upon the
facts and circumstances of each case. We are not persuaded that
these divergent strands in the memorandum of decision necessarily
signal that the trial court applied an incorrect standard.

The trial court was entitled to give some weight to the failure
of the state's agents to attempt minimization. It is true that the
case law after Scott counsels us that it may be difficult to screen
intercepted conversations for pertinency, especially when the in-
vestigation focuses on a widespread conspiracy and when the in-
vestigation has not yet proceeded to establish patterns of conversa-
tions. United States v. Napolitano, 552 F. Sup. 465, 476 (S.D.
N.Y. 1982); see Scott v. United States, supra, 140-42; United
States v. Feldman, 606 F.2d 673, 678 (6th Cir. 1979), cert.
denied sub nom. United States v. Zalmonowski, 445 U.S. 961,
100 S. Cr. 1648, 64 L. Ed. 2d 236 (1980); United States v. Dorf-
man, 542 F. Sup. 345, 390 (N.D. Ill.), aff'd, 690 F.2d 1217
(7th Cir. 1982); United States v. Webster, 473 F. Sup. 586, 597
(D. Md. 1979), aff'd in part, rev'd in part on other grounds, 639
F.2d 174 (4th Cir. 1981), aff'd and modified, 669 F.2d 185
(4th Cir. 1982), cert. denied, 456 U.S. 935, 102 S. Cr. 1991,
72 L. Ed. 2d 455 (1982); accord, United States v. Hyde, 574 F.

9a

2d 856, 869-70 (5th Cir.), reh. and reh. en banc denied (5th Cir.
1978); United States v. Clerkley, 556 F.2d 709, 716-18 (4th
Cir. 1977), cert. denied sub nom. Shade v. United States, 436
U. S. 930, 98 S. Ct. 2830, 56 L. Ed. 2d 775 (1978); United States
v. Quintana, 508 F.2d 867, 873-76 (7th Cir. 1975); see also
Fishman, Wiretapping and Eavesdropping, $$ 152-155 (1978);
Fishman, “The ‘Minimization’ Requirement in Electronic Sur-
veillance: Title III, The Fourth Amendment, and the Dread Scott
Decision,” 28 Am. U. L. Rev. 315, 338-43 (1979). Recent federal
cases, however, permit inquiry into the good faith of the monitor-
ing agents as a relevant although not a dispositive factor in mini-
mization. United States v. Santora, 600 F.2d 1317, 1320 (9th
Cir.) , modified, 609 F.2d 433 (9th Cir. 1979); United States v.
Suquet, 547 F. Sup. 1034, 1042 (N.D. Ill. 1982); contra, United
States v. Feldman, supra, 678 n.10; United States v. Dorfman,
supra, 390 n.49. Total failure to attempt minimization is also
implicitly discountenanced by those federal cases that insist that
“[blefore evidence seized under [18 U.S.C. § 2518 (5) (1976)]
may be admitted, the court must be ‘!eft with the conviction that
on the whole the agents have shown a high regard for the right
of privacy and have done all they reasonably could to avoid un-
necessary intrusion.’ United States v. Tortorello, 480 F.2d 764,
784 (2d Cir.), cert. denied, 414 U.S. 866, 94 S. Ce. 63, 38 L.
Ed. 2d 86 (1973).” United States v. DePalma, 461 F. Sup. 800,
817 (S.D.N.Y. 1978) (decided after Scott); see United States v.
Clerkley, supra, 716. Furthermore, we note that Scoét itself in
dictum states that the motive of the officers may be relevant in
designing a remedy once the illegality of the wiretap is otherwise
established. Scott v. United States, supra, 139 n.13. In our view,
therefore, federal law does not preclude all inquiry into whether
the conduct of police officers constituted indiscriminate listening.

Even more important, it is clear that the federal standard, while
it establishes minimum guidelines for safeguarding individual free-
dom from unlawful electronic surveillance; see U.S.C. § 2516 (2)
(1976); in no way prevents states from enacting stricter safe-

10a

guards; State v. Grant, 176 Conn. 17, 25, 404 A.2d 873 (1978);
see Warden v. Kahn, 99 Cal. App. 3d 805, 810, 160 Cal. Rptr.
471 (1979); State v. Ayers, 118 N.H. 90, 91, 383 A.2d 87
(1978); State v. Catania, 85 N.J. 418, 436, 427 A.2d 537
(1981); People v. Brenes, 42 N.Y. 2d 41, 46, 396 N.Y.S. 2d
629, 364 N.E. 2d 1322 (1977); “and courts may construe their
own state’s wiretap law so as to afford their citizens additional
protection.” State v. Catania, supra, 436; see People v. Brenes,
supra, 46. The New York Court of Appeals, construing a statutory
minimization requirement identical to that of our own state, has
required the government to demonstrate “that procedures were
established to minimize interception of nonpertinent communica-
tions and that a conscientious effort was made to follow such pro-
cedures.” People v. Floyd, 41 N.Y. 2d 245, 250, 392 N.Y.S. 2d
257, 360 N.E. 2d 935 (1976); see United States v. Lilla, 534
F. Sup. 1247, 1266-67 (N.D.N.Y. 1982); People v. Brenes, supra.
The New Jersey Supreme Court, similarly, has held “that subjec-
tive good faith will be required in addition to actual objective
reasonableness in all minimization efforts.” State v. Catania, supra,

436.

We have previously recognized that our own wiretap statute
is in many ways more stringent than the federal act. State v.
Grant, supra, 25, 25 n.3; see 14S. Proc., Pt. 2, 1971 Sess., pp. 849
(remarks of Sen. Jay Jackson), 855 (remarks of Sen. James
Macauley). While the federal minimization language is sub-
stantially identical to Connecticut’s,? the state minimization pro-
vision now requires that surveillance orders terminate within fifteen
days. The more permissive federal act, on the other hand, allows

9. See footnote 5, supra, for relevant portion of General Statutes § 54-4le
(11). See footnote 8, supra, for text of 18 U.S.C. § 2518(5) (1976).

lla

thirty days of surveillance. The fifteen day limit is itself a form of
extrinsic minimization'® evidencing a strict approach on the part
of our legislature with respect to the rainimization question.

Resolution of the appropriate weight to be assigned good faith
can wait another day, however. The record in the present appeal
does not require us to resolve the ambiguity inherent in the trial
court's memorandum of decision.'' Whatever standard the trial
court adopted, or should have adopted, the present record demon-
strates, for the reasons set out below, that the state police violated
the minimization mandate of the wiretap statute and of orders 73-

03 and 73-04.

10. “Extrinsic minimization involves limiting the time period during
which monitoring is conducted.” Fishman, Wiretapping and Eaves-
dropping, § 151 (1978). “[T]here is some reason to think that res-
tricting the time of listening in was thought by Congress to be the, or
at least a, principal method of minimizing. See, e.g., Senate Report
No. 1097, 90th Cong., 2d Sess, Judiciary Committee, Apr. 29, 1968,
to accompany S. 917 reproduced in 1968 U.S. Code Cong. & Adm.
News, p. 2112, at p. 2190, 2192-93." Unmited States v. Chavez, 533
F.2d 491, 493 (9th Cir.), cert. denied, 426 US. 911, 96 S. Cr. 2237,
48 L. Ed. 2d 837 (1976).

11. Because of the death of the trial court judge while this appeal was
pending, we cannot remand for further articulation to ascertain the
weight given to the monitoring officer's failure to attempt minimiza-
tion. We note, however, that, in response to the state's motion to re-
argue, the trial court, Levine, J., found no inconsistency between the
memorandum of decision of McGrath, J., and the District of Columbia
Court of Appeals decision in United States v. Scott, 516 F.2d 751
(DC. Cir. 1975), reh. and reh, en banc denied, 522 F.2d 1333 (D.C.
Cir. 1975). cert. denied, 425 U.S. 917, 96 S, Cr. 1519, 47 L. Ed. 2d
768 (1976). The Court of Appeals decision was approved by the
United States Supreme Court in the principal case of Scott v. United
States, 436 US. 128, 98 S. Cr. 1717, 56 L. Ed. 2d 168, reh. denied, 438
US, 908, 98 S. Cr. 3127, 57 L. Ed. 2d 1150 (1978).

12a

ok

U

The state contends as a matter of fact that overhearing every
telephone conversation in the present case was objectively reason-
able because it was impossible to determine the pertinency of each
call until the call terminated. The state supports this factual claim
by alleging the high percentage of conversations pertinent to the
complex narcotics conspiracy under investigation, and the brevity
of the nonpertinent calls.

It is not the function of this court to make full-scale factual
findings de novo. Thus our review of the state’s allegations is
limited to determining whether, during the suppression hearing,
the state met its burden of making a prima facie showing of com-
pliance with the minimization requirement.'* If the state met its
burden of demonstrating the impossibility of effecting further
minimization, then the burden shifted to the defendant to demon-
strate the state’s failure to minimize. United States v. Rizzo, 491
F.2d 215, 217 (2d Cir.), cert. denied, 416 U.S. 990, 94 S. Cr.
2399, 40 L. Ed. 2d 769 (1974); United States v. Suquet, 547 F.
Sup. 1034, 1045 (N.D. Ill. 1982); United States v. Cale, 508 F.
Sup. 1038, 1041 (S.D.N.Y. 1981). We conclude that, even
under the minimization standard it urges us to adopt, the state did
not meet its burden.

It is true that many officers at the suppression hearing testified
to the impossibility of ascertaining pertinency prior to the termina-
tion of calls, and to the absence of any “pattern of innocent calls”
which might have established a basis for excluding from surveill-
ance calls falling within that pattern.'* Furthermore, State

12. Since there are no issues of credibility in such a determination, it may
appropriately be made by a reviewing court. See Ivey, Barnum &
O'Mara tv. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n.2,
A.2d (1983); Drazen v. Drazen, 180 Conn. 572, 573 n.3, 430
A 2d 1288 (1980).

13. This same testimony did not claim that any attempt was made to mini-
mize. Rather, the testimony was to the effect that, even if such an
attempt had been made, no calls could have been excluded from sur-
veillance.

13a

Trooper John Petrowski, who supervised the surveillance, sub-
mitted to the trial court a pertinency analysis of overheard calls,
based on his review of the logs prepared, contemporaneously with
the surveillance, by the monitoring officers. That analysis alleged
that of the 149 calls overheard on the Austin House Hotel lobby
telephone during the first six days of wiretap order 73-03, 52 per-
cent were pertinent to the investigation. Of the 68 nonpertinent
calls, only eight exceeded two minutes in length. Of the 298 calls
intercepted pursuant to order 73-04, 88 percent were pertinent.
Of the 33 nonpertinent calls under order 73-04, only one exceeded
two minutes in length. While the deiinition of pertinency was the
subject of some disagreement among the officers who testified at
the hearing, Trooper Petrowski deemed pertinent any narcotics-
related conversation and any conversation to which a person under
investigation was a patty.

Our assessment of the state’s case is hampered by the state’s
failure to offer a pertinency analysis of the great majority of calls
made pursuant to order 73-03.'* Without such an analysis, the
trial court was not bound to credit the state’s conclusory claim that
only a small percentage of innocent calls exceeded two minutes in

length.

The state's case is marred, however, by a deficiency more grave
than this. The state contends that in determining, for minimization
purposes, whether a call should have been excluded from surveil-
lance, the inquiry is whether the call was germane to the overall
investigation. Such is not the case: “The term minimization is a
shorthand expression which represents the government's obligation
to reduce to the extent possible interceptions of conversations which
are not the subject of the court order.” (Emphasis added.) United

14. As we have noted, two public telephones were tapped at the Austin
House Hotel pursuant to order 73-03. One was located in the lobby
and one outside the hotel. The taps lasted twenty days each. The state's
call analysis is restricted to calls overheard on the inside phone during
the first six days of the tap.

l4a

States v. Dorfman, 542 F. Sup. 345, 390 (N.D. Ill.), aff'd, 690
F.2d 1217 (7th Cir. 1982). Court orders 73-03 and 73-04 were
for the interceptions of calls of Arnold Albert and Daniel Wrisley,
respectively, not of the calls of their alleged coconspirators. Con-
cededly, orders such as were issued in the present case permit the
overhearing of unnamed individuals who are parties to the con-
versations of those named in the order. United States v. Kahn, 415
U.S. 143, 156, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974). Before
an order can be said to permit surveillance of persons who are
neither named in the order nor conversing with persons named in
the order, however, the language “and conversations of others un-
known,” or some clear equivalent thereto, must appear on the face
of the order.'®

Any other interpretation of the order’s language would, we
believe, vest the executing officer with discretion to determine the
scope of the surveillance, in contravention of requirements con-
tained in the fourth amendment to the United States constitution,
in article first, § 7 of the constitution of Connecticut, and in the
wiretap statute itself. “[T]he Fourth Amendment confines an

15. The state contends that United States v. Kahn, 415 US. 143, 154-55,
94 S. Ct. 977, 39 L. Ed. 2d 225 (1974) holds “that the interception
of conversations between persons unnamed in the order is proper so
long as the conversations pertained to the subject matter within the
purpose of the wire interception.” We disagree with the state's inter-
pretation. United States v. Kahn, upheld the validity of an order per-
mitting surveillance of a named subject “and others as yet unknown.”
Id., 156. In determining the permissible scope of the warrant, the
Supreme Court found the quoted language dispositive; id.; and inter-
preted its meaning exactly as we do. Id.; accord, Umited States v.
O'Neill, 497 F.2d 1020, 1022-23, (6th Cir. 1974). Compare United
States v. Capra, 501 F.2d 267, 276 (2d Cir. 1974), cert. denied, 420
US. 990, 95 S. Cr. 1424, 43 L. Ed. 2d 670 (1975) (requiring sup-
pression of conversations of party who was neither named in order nor
conversing with named party, when order permitted only “the intercep-
tion of telephone communications of [named suspect] with co-con-
spirators, accomplices and agents”; id. 273) with United States v.

15a

_-
~

officer executing a search warrant strictly within the bounds set by
the warrant.” Bivens v. Six Unknown Federal Narcotics Agents,
403 U. S. 388, 394 n.7, 91 S. Ce. 1999, 29 L. Ed. 2d 619 (1971);
Marron v. United States, 275 U.S. 192, 196, 48 S. Ce. 74, 72 L.
Ed. 231 (1927); United States v. Heldt, 668 F.2d 1238, 1260
(D.C. Cir. 1981), cert. denied sub nom. United States v. Hubbard,
456 U.S. 926, 102 S. Cr. 1971, 72 L. Ed. 2d 440 (1982). To
permit the executing officer to exceed those bounds would evis-
cerate the fourth amendment’s requirement that electronic sur-
veillance be authorized by a warrant issued by a neutral judicial
officer. Katz v. United States, 389 U.S. 347, 354-59, 88 S. Cr.
507, 19 L. Ed. 2d 576 (1967); Berger v. New York, 388 U.S.
41, 54-55, 87 S. Cr. 1873, 18 L. Ed. 2d 1040 (1967).

We emphasize that in construing the orders the issue is not
whether the three judge panel could reasonably have issued broader
ones. We assume arguendo that a broader order might well have
issued for each wiretap. The scope ef the wiretaps was for the
panel to decide. In shaping its orders, the panel had discretion to
narrow the permitted ficld of surveillance as it did. See General

Principie, 531 F.2d 1132, 1137-38 (2d Cir. 1976), cert. denied, 430
US. 905, 97 S. Cr. 1173, 51 L. Ed. 2d 581 (1977) (refusing to
suppress conversations between two unnamed parties when order per-
mitted interception of “the telephone communications of [named
suspect], his co-conspirators, agents and associates”; id. 1135); see
generally Fishman, Wiretapping and Eavesdropping (1978) §§ 49,
50 and esp. 110. Contra, People v. Palozzi, 44 App. Div. 2d 224, 227,
353 N.Y.S.2d 987 (1974). In Palozzi the trial court suppressed con-
versations between two persons, neither of whom was the subject
named in the warrant. People v. Palozzi, 74 Misc. 2d 774, 778, 346
N.Y.S.2d 595 (1973). The appellate division reversed on the ground
that the express language of the warrant permitted “interception of the
target phone to secure supervision of the persons involved in gambling
activities”; People v. Palozzi, 44 App. Div. 2d 224, 226, 353 N.Y.S.2d
987 (1974); but also implied that, under United States v. Kahn, a
narrower order would also have permitted interception of the conver-
sations in question. Id., 226-27.

16a

Statutes § 54-41d; cf. Mass. Gen. Laws Ann. c. 272 § 99 (I) (3)
(1980).

The state contends that the surrounding circumstances and cer-
tain language in the orders, however, indicate that the three judge
panel approved the interception of all calls. This argument, which
we find unpersuasive, consists of three parts.

First, noting that the wiretap applications sought to intercept
the calls “of others unknown” in addition to Albert and Wrisley,
the state argues that the panel’s designation of the “approved” box
on the order forms, instead of the “approved with conditions” box,
had the effect of incorporating by reference the “and others un-
known” language contained in the applications. We read the
panel's designation as merely indicating that the state’s application
required no further amendment. We note that the panel had pre-
viously delayed action on the application pending the submission
of an amendment by the state. Regardless of its actual meaning,
however, the designation of the preprinted box is too ambiguous
to contradict the clear language of the order itself.'”

Second, the state contends that the parenthetical designation of
Wrisley as “subscriber” on application 73-04 indicates that it was
his telephone, and not Wrisley himself, that was the subject of the
wiretap order. We disagree. The word “subscriber” was pre-
printed on the order form. In order 73-03, where it was inappro-

16. The Massachus*tts wiretap statute requires the order to specify the
person to be ovevheard. It omits the “if known” language of the Con-
necticut statute. Mass. Gen..Laws Ann. c. 272 § 99(1) (3) (1980).
See Carr, The Law c‘ Electronic Surveillance § 4.07 [1]. In Connecti-
cut, the question of = ..ether unnamed parties may be overheard is left
to the issuing panel. Of course the greater latitude given the panel by
the Connecticut statute in no way mandates the inclusion of “others
unknown” in the scope of a particular order.

17. The case cited by the state in support of its incorporation-by-reference
argument is United States v. Tortorello, 480 F.2d 764, 781 (2d Cir.),
cert. denied, 414 US. 866, 94 S. Cr. 63, 38 L. Ed. 2d 86 (1973). In

17a

bu.

priate, it was simply crossed out. No particular significance, short
of the fact that the subscriber of the telephone may typically be the
subject of the proposed wiretap, should be attached to it. Nor can
it be said, as a matter of law, that a warrant to overhear a sub-
scriber’s conversations constitutes a warrant to overhear the con-
versations of all others who may use that telephone. As the wire-
tap statute explicitly recognizes, the privacy interest of one using
a telephone is distinct from the privacy interest of the owner of the
premises where the telephone is located. General Statutes §§ 54-
41a(10), 54-41m. See also Katz v. United States, 389 U.S. 347,
351-52, 88 S. Ct. 507, 19 L. Ed. 2d $76 (1967). Of course, the
fact that the wiretap was conducted on a residential telephone may
remain relevant in determining the adequacy of minimization pro-
cedures. Scott v. United States, 436 U.S. 128, 140, 98 S. Ce. 1717,
56 L. Ed. 2d 168, reh. denied, 438 U.S. 908, 98 S. Ct. 3127, 57
L. Ed. 2d 1150 (1978).

Third, noting that the extension applications acknowledged con-
versations, already overheard, which did not include the named
parties, the state argues that the panel’s granting of the extensions
implicitly ratified the state’s manner of executing the wiretaps. We
again disagree. The extension application was not an adversary

that case the greater specificity of the incorporated application cured
the dearth of specificity in the order itself. See also United States v.
Heldt, 668 F.2d 1238, 1260 (D.C. Cir. 1981), cert. denied sub nom.
United States v. Hubbard, 456 US. 926, 102 S. Cr. 1971, 72 L. Ed 2d
440 (1982); Hudson v. State, 368 So, 2d 899, 903-904 (Fla. App.
1979). Because we find no incorporation by reference in the present
case we express no opinion regarding the converse proposition ad-
vanced by the state: that a search which exceeds the particularized
scope of the warrant may be justified based on the more general scope
of the incorporated application. We note that this argument has been
rejected by the District of Columbia Court of Appeals. Moore v.
United States, 461 F.2d 1236, 1238-39 (D.C. Cir. 1972).

18a

proceeding and the cited conversations were relevant only to deter-
mine the existence of probable cause. There is no reason to think
that the panel, in issuing its ex parte order, even considered, let
alone ratified, the manner in which the wiretaps were being con-

ducted, '®

The minimization issue in the present case may therefore be
stated as follows: Was it possible for the state to minimize sur-
veillance so as to exclude conversations not involving, for order
73-03, Arnold Albert, and for order 73-04, David Wrisley? The
state has made no claim that it was impossible to recognize, or to
learn to recognize, the voices of these individuals. The testimony
of the officers indicates, to the contrary, that it was entirely possible.
For example, for order 73-03, during an eight hour shift on March
18, 1973, ten calls were fully intercepted, none of them involving
Albert; on a March 20, 1973, shift, nineteen calls were intercepted,
none involving Albert. In fact, for a period of several days in-
clusive of these shifts, close to 100 calls were monitored to which
Albert was not a party. Our own examination of the logs of wire-
tap No. 73-04 indicates that the majority of the calls did not in-
volve Wrisley as a party, and that the parties to most calls were
readily identified by the monitoring officer.

In light of these circumstances, we conclude that if the state had
reasonably attempted minimization, a great number of conversa-
tions outside the scope of orders 73-03 and 73-04 could have been

18. Even if we were to assume, arguendo, that the panel was coguizant of
the unauthorized surveillance in which the police were engaged, it is
doubtful that the panel would have had the authority retrospectively
to enlarge the scope of the search authorized by its prior order. “A
transaction capable of ratification can be ratified if, but only if, the
purported principal can authorize such a transaction at the time of
afirmance ....” 1 Restatement (Second), Agency § 86 (1957).

19a

og
.

excluded from surveillance.'? The wiretaps were therefore con-
ducted in violation of the minimization requirement. Scott v.
United States, supra, 134.

Il

The state’s final argument is that, even if the conduct of the
wiretap violated the minimization requirement, suppression is
warranted only of those calls which should properly have been
excluded from surveillarice. The issue which the state raises was
expressly reserved in Scott v. United States, supra, 135 n.10; and
remains the subject of controversy in the courts.

One line of cases, which the state urges us to follow, holds that
conversations contemplated by the warrant are admissible even if
conversations extraneous to the warrant have been overheard.
United States v. Cox, 462 F.2d 1293, 1301-1302 (8th Cir. 1972),
cert. denied, 417 U.S. 918, 94 S. Ct. 2623, 41 L. Ed. 2d 223
(1974); United States v. Dorfman, 542 F. Sup. 345, 394-95
(N.D. Ill), aff'd, 690 F.2d 1217 (7th Cir. 1982); United States
v. Sisca, 361 F. Sup. 735, 746-47 (S.D.N.Y. 1973), aff'd, 503
F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S. Cr. 328,
42 L. Ed. 2d 283 (1974). Other courts require the total suppres-
sion of all communications wherever the minimization requirement
is violated. United States v. Focarile, 340 F. Sup. 1033, 1047
(D. Md.), aff'd sub nom. United States v. Giordano, 469 F.2d
522 (4th Cir. 1972), aff'd, 473 F.2d 906 (4th Cir. 1973), aff'd,
416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974); United

19. Because we agree with the trial court that the conduct of wiretap
order 73-04 was in violation of the minimization requirement, it is
unnecessary to consider the state's claim that the evidence showing
probable cause for issuance of order 73-04 was obtained independently
of the fruits of wiretap order 73-03. For discussion of such a claim,
see United States v. Giordano, 416 US. 505, 530-33, 94 S. Cr. 1820,
40 L. Ed. 2d 341 (1974).

20a

States v. Scott, 331 F. Sup. 233, 248 (D.D.C. 1971), vacated on
other grounds, 504 F.2d 194 (D.C. Cir. 1974); see also N.J. Stat.
Ann. 2A: § 156A-21 (Cum. Sup. 1983) .2°

We feel the more reasonable rule is that stated by a third line
of cases. Numerous courts, both before and after the decision in
Scott v. United States, have stated that while partial suppression is
the proper remedy when minimization is attempted but fails, total
suppression is necessary when the violation results from a com-
plete disregard of the minimization requirement. United States v.
Santora, 600 F.2d 1317, 1320 (9th Cir.) , modified, 609 F.2d 433
(9th Cir. 1979); United States v. Hyde, 574 F.2d 856, 869 (Sth
Cir.), reh. and reh. en banc denied, (5th Cir. 1978); United States
v. Turner, 528 F.2d 143, 156 (9th Cir.), cert. denied sub nom.
Grimes v. United States, 423 U.S. 996, 96 S. Cr. 426, 46 L. Ed.
2d 371 (1975), and sub nom. Hackett v. United States, 429
U.S. 837, 97 S. Cr. 105, 50 L. Ed. 2d 103 (1976); United States
v. Suquet, 547 F. Sup. 1034, 1039 (N.D. Ill. 1982); United
States v. Webster, 473 F. Sup. 586, 598 (D. Md. 1979), aff'd in
part, rev'd in part on other grounds, 639 F.2d 174 (4th Cir.
1981), aff'd and modified, 669 F.2d 185 (4th Cir. 1982), cert.
denied, 456 U. S. 935, 102 S. Cr. 1991, 72 L. Ed. 2d 455 (1982);
United States v. Curreri, 363 F. Sup. 430, 437 (D. Md. 1973);
United States v. Lanza, 349 F. Sup. 929, 932 (M.D. Fla. 1972);
United States v. Leta, 332 F. Sup. 1357, 1360 n.4 (M.D. Pa.
1971); accord, Fishman, Wiretapping and Eavesdropping § 290
(1978). Although the rule was stated as dictum in the above
cited cases, the Florida Supreme Court and the New York Court
of Appeals have required the total suppression of wiretap evidence
in accordance with the rule which we adopt. Rodriguez v. State,

20. The New Jersey wiretap statute provides that any minimization viola-
tion must result in the suppression of “the entire contents of all inter-
cepted wire or oral communications ... .” N.J. Stat. Ann. 2A: § 156
A-21 (Cum. Sup. 1983). See State v. Catania, 85 N.J. 418, 426, 427
A.2d 537 (1981).

2la

297 So. 2d 15, 21 (Fla. 1974); People v. Brenes, 42 N.Y.2d 41,
49-50, 396 N.Y.S.2d 629, 364 N.E.2d 1322 (1977). Three
considerations, essentially, militate for this approach: (1) recog-
nition of the need for an effective deterrent to unlawful conduct
of wiretaps, (2) appreciation of the exceptional dangers inherent
in overbroad wiretap surveillance, and (3) reluctance to accept as
evidence in the courts of this state materials obtained in disregard
of a court order.*'

The difficulty with suppressing only those conversations outside
the scope of the wiretap order is that a remedy so limited would
remove an incentive to restrict interception to the proper scope of
the order. United States v. Focarile, supra, 1047; State v. Catania,
85 N.J. 418, 426, 427 A.2d 537 (1981); Fishman, “The
‘Minimization’ Requirement in Electronic Surveillance: Title III,
The Fourth Amendment, and the Dread Scost Decision,” 28 Am.
ULL. Rev. 315, 352 (1979); note, “Minimizing Minimization,”
59 B.U.L. Rev. 567, 578 n.90 (1979). A court's exclusion of
extraneous evidence constitutes a post facto minimization that
neither remedies the prior invasion of privacy nor burdens those
who conduct surveillance in disregard of the minimization require-
ment.

21. A corollary of our holding today is that persons aggrieved by a par-
ticular wiretap; see General Statutes § 54-41a(10); have standing to
contest the state's failure to minimize its interception of conversations,
overheard in the course of the same wiretap, to which the aggrieved
person was not a party. Accord United States v. Scott, 504 F.2d 194,
197 (DC. Cir. 1974); United States v. Suquet, 547 F. Sup. 1034,
1038-40 (N.D. Ill. 1982); State v. Catania, 85 N.J. 418, 425-27, 427
A.2d 537 (1981). Determination of the overall reasonableness of
minimization procedures necessitates such an approach. Umited States
v. Scott, supra. In the present case, the state does not dispute that the
defendants are aggrieved persons, nor does it make any other challenge
to the defendants’ standing. We express no opinion, therefore, as to
whether an aggrieved person would have standing to suppress a con-
versation to which he was not a party, upon proof that the conversa-
tion was illegally intercepted. See United States v. Scott, supra, 0.5;
United States v. Suquet, supra.

22a

Furthermore, the purpose of the minimization requirement is to
prevent a wiretap from turning into “a general search and whole-
sale invasion of privacy.” United States v. King, 335 F. Sup. 523,
544-45 (S.D. Cal. 1971), aff'd in part, rev'd in part on other
grounds, 478 F.2d 494 (9th Cir.), cert. denied sub nom. Light v.
United States, 414 U.S. 846, 94 S. Cr. 111, 38 L. Ed. 2d 94
(1973), cert. denied, 417 U.S. 920, 94 S. Ct. 2628, 41 L. Ed. 2d
226 (1974); see Andresen v. Maryland, 427 U.S. 463, 482 n.11,
96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). The overhearing of
telephone conversations, like a search of documents, poses an in-
herent danger of turning into a general search, due to the difficulty
of ascertaining the relevance of the item to be “seized.” Andresen
v. Maryland, supra. Where disregard of a warrant’s limitations is
flagrant and entire, the otherwise valid warrant may become a
general one in which case the “fruits of the search” must be sup-
pressed. United States v. Heldt, 668 F.2d 1238, 1259 (D.C. Cir.
1981); see United States v. Sequet, 547 F. Sup. 1034, 1039-43
(N.D. Ill. 1982).

Finally, we feel the present approach is necessary to ensure the
integrity of the wiretap statute and of the functioning of the
judiciary with respect to it. The remedy which the trial court de-
signed and which we adopt is no more exceptional than the cir-
cumstances which demanded it. The execution of the wiretap in
the present case entirely misconstrued the scope of the order which
authorized it, completely disregarded the minimization require-
ment contained in that warrant, and resulted in the overhearing of
hundreds of conversations, incriminating and innocent alike, which
could have been excluded had proper minimization occurred. Be-
cause of the conjunction of these factors, the remedy of total sup-
pression which the trial court ordered was entirely appropriate.

There is no error.

In this opinion the other judges concurred.

23a

APPENDIX B

No. 11442
No. 11481
STATE OF CONNECTICUT : SUPERIOR COURT
VS. ; JUDICIAL District OF WATERBURY
ROBERT PARKER, JR. : SEPTEMBER 6, 1974

MEMORANDUM OF DECISION
RE MOTIONS TO SUPPRESS

1. STATEMENT OF FACTS

On March 9, 1973, John F. Bianchi, state’s attorney for Litch-
field County, and Francis M. McDonald, Jr., state’s attorney for the
Judicial District of Waterbury, executed an application for author-
ity to intercept wire communications pursuant to Connecticut
General Statutes § 54-41b et seq. The allegations contained in the
application signed by Mr. Bianchi and Mr. McDonald alleged,
inter alia, that one Arnold “Tuffy” Albert and others unknown
had committed and were continuing to commit the crime of sale
of narcotics in violation of § 19-480 of the Connecticut General
Statutes. The application sought to intercept the telephone com-
munications of Albert and others unknown. It was further alleged
that telephone communications over two telephone numbers,
which were both public telephones in the town of Terryville,
would constitute material evidence that the offense had been and
was being committed, and would aid in the apprehension of the
perpetrator of such offense. The purpose of the wire interceptions
was to discover the identity of the unknown suppliers and distribu-
tors of heroin and to prosecute them as well as Albert.

On March 9, 1973, John Griffin, who identified himself as a
lieutenant attached to the Waterbury police department, and serv-
ing as head of the vice and intelligence division of that department,

lb

and also acting as head of the Naugatuck Valley regional crime
squad, executed an affidavit in which he sets up in said affidavit
allegations of a number of sal:s of “a brown Mexican heroin” by
Mr. Albert, to undercover Connecticut law enforcement officers.
The allegations of said affidavit were that several purchases had
been made by undercover agents from Albert, the purchases re-
sulting in face to face dealing, as well as telephone conversations
over the subject telephones between the officers and Albert.

The affidavit of Lieutenant Griffin also alleged that information
had been received by an undercover agent that Albert had an in-
dividual supplying him with the heroin which was being sold by
Albert to the undercover agents.

Information was also disclosed in the affidavit of Mr. Griffin
that Albert had told Officer Kelly, a Middlebury undercover agent,
that Albert was using the telephone number 589-9920, which said
phone was located in the lobby of the Austin House Hotel, for
incoming calls with respect to the sale of heroin, and telephone
number 589-9878, which is a public phone located outside the
said hotel, for outgoing calls relating to narcotics transactions.

The affidavit of Mr. Griffin also contained the allegation that
wire interception was required in the investigation “because normal
investigative procedures, such as physical surveillance of Albert
would be too dangerous to employ and would be impossible to
maintain within his present residence, the Austin Hotel, and within
the outside public pay telephone, and since according to the said
agent, Albert has exhibited considerable wariness in trafficking in
heroin, and has not introduced his source of heroin to the under-
cover agent. Future negotiations to purchase large amounts of
heroin would be jeopardized by physical surveillance and efforts
by the undercover officers to, ascertain the principal supplier of
Albert by conversations with Albert, or to have a contact directly
made with the supplier by the agents, have been fruitless. From
the past experience of the affiant, who has directed such investiga-
tions in the past, the middleman is always loath to reveal his

2b

source of drugs for fear of being ‘dealt out’ or deprived of his
commission on the sale of narcotics.”

The application as hereinbefore set forth was filed with the
wiretap panel, which had been created pursuant to the provisions
of the Connecticut General Statutes, and according to Siegbert
Kaufmann, the executive secretary of the wiretap panel, the wire-
tap panel met on said application on March 14, 1973, and ad-
journed without making a decision with respect to the application.

On March 14, 1973, subsequent to the meeting of the wiretap
panel, John Bianchi and Francis M. McDonald filed an amend-
ment to the application, which contained the supplemental affidavit
of Mr. Griffin, and three amendments to the application originally
filed by Mr. Bianchi and Mr. McDonald. The supplemental
affidavit of Lieutenant Griffin set forth that an agent had been with
Mr. Albert when Mr. Albert entered a house in Plainville to obtain
heroin, and the supplemental affidavit was to the effect that the
agent had been unable to observe which house Mr. Albert had
entered at that time.

Also appended to the affidavit was a list of officers permitted
to act as interceptors or monitors of the wiretap, and the allegation
was made in the affidavit filed by Messrs. Bianchi and McDonald
to the effect that all were members of the Connecticut state police
department “and have had either training with that department
or the New York and New Jersey State Police Departments in
electronic surveillance.” On March 15, 1973, by unanimous vote,
the application of Mr. Bianchi and Mr. McDonald was approved

without condition by the wiretap panel, resulting in the issuance .

of order number 73-03 (defendant's exhibit 1D).

The order of the wiretap panel with respect to the interceptions
contained the following language “order the interception of the
wire communications of Arnold Albert who it found probable
cause to believe, had committed or is committing the following
offense: violation of Section 19-480a.” The order of the panel
contained the following language: “5. The panel orders the above

3b

named officers to intercept the telephone communications of
Arnold Albert residing/having his place of business at: Austin
Hotel, Plymouth, Conn., from 5 p.m. on 15 March 1973 to 5 p.m.
on 25 March 1973, inclusive, during twenty four hours of each
day.” The report of the panel recited that the name of the person,
if known, whose communications are to be intercepted, was Arnold
Albert.

The order contained the following language: “7. This order/
extension shall be executed as soon as practicable, shall be con-
ducted in such a way as to minimize the interception of communi-
cations not otherwise subject to interception in accordance with the
provisions of Chapter 959a, and shall terminate upon attainment
of the authorized objective.”

On March 22, 1973, the same applicants, that is, Francis M.
McDonald, state’s attorney for the Judicial District of Waterbury,
and John F. Bianchi, state’s attorney for Litchfield County, filed
an application with the wiretap panel, requesting an extension of
order number 73-03, requesting that the interceptions be extended
for a period of ten calendar days commencing at the termination
of the original order. Attached to the application was the affidavit
of one Sergeant Lester Forst, as well as the logs of interceptions
already made during the period of the original order.

The extension application sought to extend the order author-
izing the interception of communications of Albert and others
unknown. (Defendant's exhibit 2A, paragraph two). The request
for extension was received and granted on March 23, 1973. (De-
fendant’s exhibit 2B).

The allegations in the affidavits of Messrs. Bianchi and McDonald
with respect to the necessity of intercepting a communication over
a public facility was as follows: ‘18. A special need exists to inter-
cept wire communications from public facilities since Albert is
making extensive use of such facility at or near the Austin Hotel
where he is now staying.”

4b

Also contained in the application by the state’s attorneys was
the following paragraph with respect to the necessity of wire inter-
ceptions: “4. Other normal investigative procedures with respect
to the sale of narcotics had been tried and have failed and reason-
ably appeared to be unlikely to succeed if tried, and are too dan-
gerous to employ, such as physical surveillance and direct under-
cover contact with the suppliers of heroin to Albert.”

The affidavit of Sergeant Lester Forst was also appended to the
application for extension. In paragraph six of the affidavit of
Sergeant Forst he reveals that a member of the Naugatuck Valley
regional narcotics squad had met one LaFleur and bought heroin
from LaFleur, who had been accompanied by Kathleen Paradis.
In paragraph seven of that affidavit that undercover officer observed
that from conversation with that LaFleur and his associate Albert,
neither are suppliers but only runners of the smuggled brown
Mexican heroin being sold in the Terryville area.

On March 23, 1973, the wiretap panel unanimously voted to
extend order number 73-03, the extension to commence on 25
March 1973 at 5 p.m. and to conclude on 4 April 1973 at 5 p.m.
during twenty four hours of each day.

The stated purpose of order 73-03 was “to prosecute Albert and
others for selling narcotics, and through interception beyond this
objective to ascertain additional information trom this heavy and
continuing operation implicating suppliers and distributors.”

The order of the wiretap panel remained the same as herein-
before set forth, that is, to intercept telephone communications of
Arnold Albert, and to carry out the order in such a way as to
minimize the interception of communications not otherwise sub-
ject to interceptions.

As with the original order, a list of individuals authorized to
intercept was appended thereto. The allegation was made that all
of the men listed in the exhibit were members o Connecticut
state police department and had had either training with that de-

Sb

partment or with the New York or New Jersey state police depart-
ments in electronic surveillance.

On March 28, 1973, John D. LaBelle, state’s attorney for Hart-
ford County, filed an application for authority to intercept wire
communications pursuant to statute, setting forth in his application
that Daniel A. Wrisley |also known as Daniel A. Risley, and here-
inafter referred to as Daniel A. Wrisley], Arnold “Tuffy” Albert,
Alan LaFleur, Kathleen Paradis, Frank and Skippy whose last
names and addresses are unknown, are committing the crime of the
sale of narcotics. The application sought to intercept the communi-
cations of Wrisley and others unknown. Mr. LaBelle further
alleges that telephone communications were made over telephone
747-5361 in the town of Plainville. Mr. LaBelle also alleges that
other normal investigative procedures were tried and had failed,
and reasonably appeared to be unlikely to succeed if tried. Also
appended to the application was a statement by Mr. LaBelle that
the allegations of fact contained in the application are not based
upon his personal knowledge, but are based on information and
belief of the matters which were set forth in an affidavit attached
thereto by Sergeant Lester Forst, as well as by the information set
forth in the application previously filed by Messrs. McDonald and
Bianchi which resulted in order number 73-03.

On March 28, 1973, the wiretap panel granted the application
of Mr. LaBelle, and issued order number 73-04 which provided,
inter alia, that the officers were permitted to intercept the telephone
communications of subscriber Daniel A. Wrisley residing/having
his place of business at 17 Dewey Place, Plainville, Connecticut,
from 6 p.m. on 28 March to 6 p.m. on 7 April 1973.

The stated purpose of order 73-04 was “to prosecute Wrisley
and others for sale of narcotics and to conduct further investiga-
tions into the trafficking in narcotics by said persons.”

The order of the wiretap panel also contained a list of the in-
dividuals permitted to make interception, and also provided, as had
the previous orders, that the order was to be executed as soon as

6b

practicable, and was to be conducted in such a way as to minimize
the interception of communications not otherwise subject to inter-
ception in accordance with the provisions of the statute.

On March 29, 1973, after the tap authorized by the wiretap
panel had been instituted, the wiretap panel issued an amendment
to order number 73-04, in which it ordered that its original order
number 73-04 be amended to terminate upon attainment of the
authorized objective or in any event at midnight at 2400 hours on
6 April 1973 rather than at 6 p.m. on 7 April 1973.

On April 6, 1973, John D. LaBelle, state’s attorney for Hartford
County, filed an application with the wiretap panel seeking an
extension of order number 73-04, for an additional period of ten
days, or until such time as the objective or needed information is
first obtained. An affidavit in support of said application, executed
by Sergeant Lester J. Forst on April 5, 1973, was appended there-
to.

On April 6, 1973, the wiretap panel, by unanimous vote, ex-
tended order number 73-04 from April 7, 1973, to April 16,
1973, inclusive, during twenty four hours of each day. The inter-
ceptions under order 73-04 were concluded on April 15, 1973,
at 1:30 a.m.

The order of the panel authorized the officers named in the
order of interception to “intercept telephone communications of
(subscriber): Daniel A. Wrisley residing/having his place of
business at: 17 Dewey Place, Plainville, Connecticut, from 7 April
1973 to 16 April 1973, inclusive, during twenty four hours of
each day.”

The order of the wiretap panel also contained an order with
respect to the issue of minimizing the interceptions of communica-
tions.

Upon completion of the interceptions as permitted by the wire-
tap panel, the tapes which resulted from the interceptions were
delivered to the executive secretary of the wiretap panel. Order
number 73-03 expired on March 25, 1973, and the extension

7b

thereof expired on April 4, 1973. According to Siegbert Kauf-
mann, executive secretary of the wiretap panel, the forty-four
tapes which resulted from number 73-03 and the extension there-
of, were received by him on April 25, 1973, some twenty-one
days subsequent to the expiration of the extension, and approxi-
mately thirty days subsequent to the expiration of the order of
the wiretap panel as originally constituted.

With respect to number 73-04, the original order expired,
according to the amendment made by the wiretap panel, at mid-
night on April 6, 1973, and the extension thereof expired at
midnight on April 16, 1973. According to the testimony of Mr.
Kaufmann, fifteen tapes were delivered to him on April 13, 1973,
which is some seven days subsequent to the expiration of the
original order, and six tapes were delivered to him on April 24,
1973, some eight days after the expiration of the order of the
extension as made by the wiretap panel.

Before those tapes were given to the panel clerk, the state
police were required to make copies of them for discovery use by
defense counsel, since the judicial department had no facilities
to make copies.

Robert E. Parker, Jr., “also known as Skip,” was arrested and
charged by virtue of two bench warrants issued by the Superior
Court for the Judicial District of Waterbury with one count
alleging conspiracy to distribute, sell, dispense, compound, trans-
port with the intent to sell and dispense, heroin, a narcotic sub-
stance, in violation of the statute, in that case made and provided,
and in a second information, with possession of heroin and sale of
heroin.

The conspiracy case affidavit arises out of the fruits of the
electronic surveillance. The second information does not and no
information gained by the electronic surveillance was given to
the undercover agents purchasing the heroin from Parker.

In both cases, by application dated May 15, 1973, the defen-
dant Robert Parker, Jr., filed with the panel of judges pursuant to

8b

the provisions of § 54-41k of the Connecticut General Statutes,
applications for inspection and production of intercepted com-
munications, applications and orders. The defendant also sought
an inventory of all communications intercepted, as well as the
communications intercepted or recordings thereof, which was
denied by the panel. Logs used for obtaining the extension of
order number 73-03 were produced, however, on the theory that
they formed a portion of the application for the extension of the
order. No other logs were supplied to the defendant, despite his
request for production.

Il. CONSTITUTIONALITY OF STATUTE

The defendant has attacked the constitutionality of the statute
authorizing the interception. His primary argument is that the
statute violates the fourth amendment restrictions against unrea-
sonable searches and seizures.

The motions before the court challenge the validity of chapter
959a of the Connecticut General Statutes which establishes the
procedure for the interception of wire and oral communicaticns.

The fourth amendment to the Constitution of the United States

dictates that people have a right “. . . to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures,...” and that this right “. . . shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” The amendment does not
bar all searches and seizures but only those that are unreasonable.
The amendment outlawed the “general warrant,” and its basic
purpose ". . . is to safeguard the privacy and security of indivi-
duals against arbitrary invasions by governmental officials.”
Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727,
18 L. Ed 2d 930 (1967).

9b

Thus, the issue is whether chapter 959a of the Connecticut
General Statutes permits unreasonable searches and seizures in
violation of the fourth amendment.

The United States Supreme Court in Berger v. New York, 388
U.S. 41, 87 S. Cr. 1873, 18 L. Ed. 2d 1040 (1967), held that
the New York permissive eavesdrop statute, N. Y. Code Crim.
Proc. § 813-a, to be unconstitutionally broad in its sweep “. . . re-
sulting in a trespassory intrusion into a constitutionally protected

area...” and, thus, violative of the fourth and fourteenth amend-
ments.

In the Berger case, the grounds upon which the statute was
held unconstitutional were as follows:

(1) The statute failed to require a showing of probable cause
that a particular offense had been or was being committed.

(2) The statute failed to require that a description be pro-
vided of the particular conversations or communications to be
intercepted.

(3) The statute failed to require particularity as to the dura-
tion of the intrusion. The court held that the intrusion should
not be so long as to be"... . the equivalent of a series of intrusions,
searches, and seizures pursuant to a single showing of probable
cause.” Id, 59.

(4) The statute failed to require particularity as to when a
surveillance should be ended after the particular conversation
sought was intercepted. As to this, the court held that discretion
should not be vested in the executing officer.

(5) The statute failed to provide for either notice to the
persons whose conversations were to be intercepted or a showing
of special facts or exigent circumstances necessitating the with-
holding of notice. Id, 58-60.

In Katz v. United States, 389 U.S. 347, 88 S. Cr. 507, 19
L. Ed. 2d 576 (1967), where the eavesdropping officers had ex-
ercised great restraint and had limited their intrusion, the Court

10b

restated the requirements of Berger, but with special emphasis on
the necessity for a showing of probable cause before an indepen-
dent judicial officer who also would establish the precise limits to
be observed in executing the eavesdropping order.

Chapter 959a represents an attempt by the legislature, inter
alia, to establish a limited system of electronic surveillance within
the framework of the fourth amendment and the guidelines of
Berger, Katz, and other Supreme Court decisions for use by law
enforcement officers in fighting crime. An examination of the
relevant sections of chapter 959a shows that they provide for
particularity in the application and order, judicial supervision, and
other protective procedures whose absence caused the Court to
condemn the electronic surveillance in Berger and Kaéz.

Judicial supervision, emphasized in Katz, is guaranteed. An
application for order authorizing interception must be made to a
panel of judges, § 54-41b, who may require additional testimony
or documentary evidence in support of fact in the application as
the panel of judges may require, § 54-41c(12), and who must
make specific findings of probable cause before authorizing the
interception, § 54-41d.

There must be particularity in the application and order. An
application must contain “a full and complete statement of the
facts and circumstances relied upon by the applicant, to justify his
reasonable belief that the wire communication of a particularly
described person will constitute evidence of a crime enumerated
in section 54-41b that has been or is being committed or that such
communication will materially aid in the apprehension of the
perpetrator of such crime and that an order should be issued,
.... Sec. 54-41c(5). Such statement must include details of
the particular offense that has been or is being committed, § 54-
41c(5A), a particular description of the nature and location of
the facilities from which or the place where the communication
is to be intercepted, § 54-41c(5B), a particular description of the
type of communications sought to be intercepted, § 54-41c(5C),
the identity of the person, if known, who has committed or is

1lb

committing the offense and whose communications are to be inter-
cepted, § 54-41c(5D). Section 54-4le likewise provides that the
order shall specify, among other things, all of the above details.
Section 54-41¢(5G) requires the hours of the day or night during
which wire communication may be reasonably expected to occur,
and § 54-41c(7) requires the application to specify the period of
time for which the interception is required to be maintained.

Section 54-41f provides that any order entered in accordance
with the provisions of chapter 959a may be executed pursuant to
its terms only by the investigative or law enforcement officers
expressly authorized therein. The order may be executed accord-
ing to its terms only during the hours specified therein, and for
the period authorized or part thereof. No order may authorize the
inerception [sic] of any wire communication for any period longer
than is necessary to achieve the objective of the authorization,
nor in any event longer than ten days.

Section 54-41g permits no more than three extensions of an
order and requires a new showing of probable cause for each ex-
tension, which period of any extension shall be in no event longer
than ten days, and said application for an extension shall be made
in accordance with the provisions of § 54-41c, which shall, in
addition, contain the results of the interceptions conducted thus
far, and findings by the issuing panel as required by the provisions
of § 54-41d.

Section 54-41li requires the recording of all intercepted com-
munications and the presentation of them under the direction of
the panel of judges.

Section 54-41k provides for notice by the panel to the persons
named in the order within a reasonable time after the termination
of an order or extension thereof but not later than ninety days
thereafter.

An examination of the relevant sections of chapter 959a shows
that they provide for particularity in the application and order,
judicial supervision including limits on the duration of the intru-

12b

sion, and other protective procedures whose absence caused the
Court to condemn the electronic surveillance in Berger and Katz.
Therefore, it is the opinion of this court that chapter 959a is
constitutional on its face.

Accordingly, the motions of the defendant to suppress based
upon the alleged unconstitutionality of chapter 959a are denied.

Il]. THE FAILURE OF THE INTERCEPTORS

TO RETURN RECORDINGS TO THE PANEL

ISSUING THE ORDER IMMEDIATELY UPON
EXPIRATION OF THE PERIOD OF THE ORDER

The next issue raised by the defendant is the failure of the inter-
ceptors to return recordings to the panel issuing the order imme-
diately upon expiration of the period of the order.

Connecticut General Statutes § 54-41i provides, inter alia:
“Immediately upon the expiration of the period of the order, or
extensions thereof, such recordings shall be made available to the
panel issuing such order and sealed under its directions and cus-
tody of such recordings shall be wherever the panel so directs.”

The evidence disclosed that the forty-four reels of tape record-
ings of the interceptions under order number 73-03, which covered
the period ending April 4, 1973, were filed with the panel clerk
on April 25, 1973. The first fifteen reels of. the interceptions
under order number 73-04 were filed on April 13, 1973, and the
remaining six reels on April 24, 1973. The interceptions under
73-04 ended April 14, 1973. Before these reels were given to the
clerk for sealing, copies necessary for the use of the applicant and
for use for discovery by defense counsel were made by the state
police since the judicial department has no facilities to make such
copies.

It is the claim of the state that at this time the state police were
very busy making these required copies and, therefore, this is a
satisfactory explanation for the delay in filing the tapes.

13b

It is the defendant's contention that the time lapse between the
end of the intercepts and the receipt of the reels per se calls for
suppression of the interceptions. However, the defendant has
shown no prejudice and he has presented no evidence that the
tapes were altered.

In United States v. Poeta, 455 F.2d 117, 122 (2d Cir. 1972),
the Court said:

“The failure immediately to present the tapes
to the issuing justice does not require their suppres-
sion. Section 2518(8) (a) [of Title 18, U.S. Code]
provides that in the absence of a seal the tapes
might be used in evidence if ‘a satisfactory explana-
tion for the absence’ is made. A fortiori, where, as
here, the tapes are sealed, a satisfactory explana-
tion for the delay will allow their use in evidence.”

It should be noted that Connecticut law also provides that a
seal . . . or a satisfactory explanation for the absence thereof,
...” is required under $ 54-41i, General Statutes.

The Poeta holding is in accord with the numerous cases inter-
preting the suppression provisions of the Federal Wiretap Law,
Title 18, U.S.C.A. 2518(10) (a) and § 54-41m, General Statutes,
its Connecticut counterpart. In those cases, it has been held that
the failure to meet some condition subsequent does not invalidate
ab initio the interception and give rise to suppression of the wire
interceptions. United States v. Cafero, 473 F.2d 489 (3d Cir.
1973); United States v. lannelli, 339 F. Supp. 171 (D.C. Pa.
1972), affirmed, 477 F.2d 999 (3d Cir. 1973).

For the above stated reasons, the defendant's motions to
suppress on the grounds of the failure of the interceptors to re-
turn recordings to the panel issuing the order immediately upon
expiration of the period of the order are denied.

14b

IV. MINIMIZATION

The court will now consider the actual execution of the inter-
cept, by far the most important issue.

The question is whether the wiretap was in fact conducted in
such a way as to minimize the interception of communications
not otherwise subject to interception as required by § 54-4le and
the judicial order issued in pursuant thereto.

Section 54-4le provides, in pertinent part, that every order and
extension thereof sha!l contain a provision that the authorization
to intercept “. . . shall be conducted in such a way as to minimize
the interception of communications not otherwise subject to inter-
ception in accordance with the provisions of this chapter [959a]

“The object of minimization, as set forth in
statute relating to procedure for interception of
wire or oral communications, is to prevent a wire-
tap from turning into an unconstitutional general
search and wholesale invasion of privacy; justify-
ing blanket surveillance on the ground that some-
thing relevant might turn up at any moment would
render the requirement of minimization nugatory
and eliminate the right of privacy. U.S.C.A. Const.
Amend. 4; 18 U.S.C.A. § 2518(5).” United
States v. King, 335 F. Supp. 523 (S.D. Cal. 1971).

s.-sessment of the minimization question necessarily ultimately
depends upon the facts and circumstances of each case.

The court commences with the observation that the mere fact
that every conversation is monitored does not necessarily render
the surveillance violative of the minimization requirement of the
statute. See United States v. Cox, 462 F. 2d 1293, 1301 (8th Cir.
1972); United States v. Leta, 332 F. Supp. 1357, 1360, n.4 (M.
D. Pa. 1971). It is also obvious that no electronic surveillance
can be so conducted that innocent conversations can be totally
eliminated.

15b

The verb “minimize” is defined in Webster's New Third Inter-
national Dictionary as meaning, “to reduce to the smallest possible
number, degree, or extent....”

From the testimony elicited from the witnesses, it was quite
apparent that the Connecticut state police, either in their so-called
“on the job training,” or by specific instructions at the time of the
setting up of the plant, were never instructed by anyone in author-
ity with respect to the requirement of the statute, and of the orders
of the wiretap panel, with respect to minimization. As a matter
of fact, it was testified to by most of the witnesses, that no instruc-
tions were ever given them with respect to minimization. When
asked what they understood minimization to mean, the witnesses
answered that they were not to intercept calls originating as to
attorneys, physicians, or clergymen.

With respect to the operation of the equipment, those officers
who were familiar with it, testified that each of the receivers were
equipped with items of equipment which permitted the tape re-
corder to be shut down, and also permitted the loud speaking de-
vice to be shut off so that the calls were neither intercepted by
tape, nor overheard by the monitors.

Each of the witnesses with the exception of one witness testified
that throughout the entire time that they monitored the equip-
ment in both order number 73-03 and order number 73-04, that
they never shut off the equipment, nor did they ever shut off the
loud speaking device which permitted them to overhear each and
every conversation by the automatically activated equipment.

From the testimony of the state troopers, it was quite apparent
that they had never been instructed with respect to the obligation
which was imposed upon them by the mandate of the statute and
by the order of the wiretap panel that they were to minimize the
interception of communications that are not otherwise subject to

interception.
The state argues that in the investigation of an ongoing nar-
cotics conspiracy such as is involved in this case, it is necessary to

16b

intercept and monitor from beginning to end all communications
passing through the tapped telephone because narcotic related
transactions are conducted through code words that are peculiar
to such transactions and conversations that may sound innocuous
in the beginning may end up on a narcotic related subject em-
ploying such code words.

The court recognizes the difficulty that monitoring agents may
have in manning wiretaps in cases of this kind. Nevertheless, that
difficulty cannot authorize indiscriminate listening or permit such
agents to totally disregard an order of the authorizing panel of
judges to conduct the interception ". . . in such a way as to mini-
mize the interception of communications not otherwise subject to
interception ....”

Further, it appears to the court that despite the practical diffi-
culties, the legislature intended minimization under § 54-41le to
involve something more than the mere provision for the limited
attorney-client, doctor-patient and clergy privilege. A communica-
tion once seized can never truly be given back as can a physical
object. The right of privacy protected by the fourth amendment
has been more invaded where a conversation which can never be
returned has been seized than where a physical object which can
be returned has been seized.

It is the opinion of this court that the surveilling agents
failed to comply with the mandate of the order and the statute,
ie., . . . tO minimize the interception of communications not
otherwise subject to interception . . .,” and, therefore, the motions
to suppress as to this issue should be and are granted.

V. CONCLUSION

In view of the decision reached on the minimization issue, the
court does not find it necessary to discuss the remaining issues.

In summary, the motions to suppress based upon the alleged
unconstitutionality of chapter 959a of the Connecticut General

17b

Statutes and upon the failure of the interceptors to return record-
ings to the panel issuing the order immediately upon expiration
of the period of the order are denied, and the motions to suppress
based upon the failure to minimize the interception of communi-
cations. not otherwise subject to interception are granted.

McGrath

Filed September 6, 1974.

18b

APPENDIX C

No. 8359
STATE OF CONNECTICUT : SUPREME COURT

VS. ; STATE OF CONNECTICUT
NEIL J. THOMPSON : SEPTEMBER 15, 1983

MOTION TO REARGUE

Pursuant to Section 3111 of the Practice Book, the State-
Appellant in the above-captioned case respectfully moves this
court for permission to reargue the appeal. The court's opinion
in this case appears at 191 Conn. 360 (September 6, 1983).

THE STATE OF CONNECTICUT

Francis M. McDonald

BY S/
Francis M. McDonald
State’s Attorney
Judicial District of Waterbury
Service certified:
Louis S. Avitabile, Esq.
182 Grand Street
Waterbury, CT 06702
Francis M. McDonald
BY S/
Francis M. McDonald

lc

No. 8359

STATE Or CONNECTICUT : SUPREME COURT
v. : STATE OF CONNECTICUT
NEIL J. THOMPSON : SEPTEMBER 21, 1983
ORDER

THE MOTION OF THE STATE OF CONNECTICUT
TO REARGUE,

HAVING BEEN PRESENTED TO THE COURT,
IT IS HEREBY ORDERED DENIED.

BY THE COURT,
FRANCIS J. DRUMM, JR.

C. EF CLERK

M.T. Angers
By

Assistant Clerk-Appellate

Notice to:

Francis McDonald, S.A.
Bradford Ward, A.S.A.
Walter Scanlon, A.S.A.
Louis Avitabile

Clerk, Waterbury J.D.
9/22/83

2c

No. 8360

STATE OF CONNECTICUT : SUPREME COURT
vs. : STATE OF CONNECTICUT
ROBERT E. PARKER, JR. : SEPTEMBER 15, 1983

MOTION TO REARGUE

Pursuant to Section 3111 of the Practice Book, the State-
Appellant in the above-captioned case respectfully moves this
court for permission to reargue the appeal. The court’s opinion
in this case appears at 191 Conn. 360 (September 6, 1983).

THE STATE OF CONNECTICUT

Francis M. McDonald
BY S/

Francis M. McDonald
State’s Attorney
Judicial District of Waterbury

Service certified:

Maxwell Heiman, Esq.
43 Bellevue Avenue
P.O. Box 1557
Bristol, CT 06010

Francis M. McDonald

BY S/
Francis M. McDonald

3c

No, 8360

STATE OF CONNECTICUT : SUPREME COURT
Vv. : STATE OF CONNECTICUT
ROBERT E. PARKER, JR. : SEPTEMBER 21, 1983
ORDER

THE MOTION OF THE STATE OF CONNECTICUT
TO REARGUE,

HAVING BEEN PRESENTED TO THE COURT,
IT IS HEREBY ORDERED DENIED.

BY THE COURT,
FRANCIS J. DRUMM, JR.

CHIEF CLERK

M.T. Angers
By

Assistant Clerk-Appellate

Notice to:

Francis McDonald, S.A.
Bradford Ward, A.S.A.
Maxwell Heiman
Clerk, Waterbury J.D.
9/22/83

4c

No. 8362

STATE OF CONNECTICUT : SUPREME COURT
VS. : STATE OF CONNECTICUT
JAMES C. BLACK : SEPTEMBER 15, 1983

MOTION TO REARGUE

Pursuant to Section 3111 of the Practice Book, the State-
Appellant in the above-captioned case respectfully moves this
court for permission to reargue the appeal. The court's opinion
in this case appears at 191 Conn. 360 (September 6, 1983).

THE STATE OF CONNECTICUT

Francis M. McDonald
BY S/

Francis M. McDonald
State’s Attorney
Judicial District of Waterbury

Service certified:

John Jessep, Esq.

55 Chapel Street

P.O. Box 1698
Bridgeport, CT 06604

Francis M. McDonald
BY S/

Francis M. McDonald

5c

No. 8362

STATE OF CONNECTICUT : SUPREME COURT
Vv. : STATE OF CONNECTICUT
JAMEs C. BLACK : SEPTEMBER 21, 1983
ORDER

THE MOTION OF THE STATE OF CONNECTICUT
TO REARGUE,

HAVING BEEN PRESENTED TO THE COURT,
IT IS HEREBY ORDERED DENIED.

BY THE COURT,

FRANCIS J. DRUMM, JR.

CHIEF CLERK
M.T. Angers
By
Assistant Clerk-Appellate

Notice to:
Francis McDonald, S.A.
Bradford Ward, A.S.A.
Koskoff, Koskoff & Bieder
Clerk, Waterbury J.D.
9/22/83

No. 8363

STATE OF CONNECTICUT : SUPREME COURT
vs. : STATE OF CONNECTICUT
FRANK P. LEPORE : SEPTEMBER 15, 1983

MOTION TO REARGUE

Pursuant to Section 3111 of the Practice Book, the State-
Appellant in the above-captioned case respectfully moves this
court for permission to reargue the appeal. The court's opinion
in this case appears at 191 Conn. 360 (September 6, 1983).

THE STATE OF CONNECTICUT

Francis M. McDonald
BY S/

Francis M. McDonald
State’s Attorney
Judicial District of Waterbury

Service certified:

Robert M. Richards, Esq.
44 Avonwood Road
Avon, CT 06001

Francis M. McDonald
BY S/

Francis M. McDonald

7c

No. 8363

STATE Or CONNECTICUT : SUPREME COURT
Vv. : STATE OF CONNECTICUT
FRANK LEPORE : SEPTEMBER 21, 1983
ORDER

THE MOTION OF THE STATE OF CONNECTICUT
TO REARGUE,

HAVING BEEN PRESENTED TO THE COURT,
IT IS HEREBY ORDERED DENIED.

BY THE COURT,

FRANCIS J. DRUMM, JR.

CHIEF CLERK
M. T. Angers
By
Assistant Clerk-Appellate
Notice to:
Francis McDonald, S.A.
Bradford Ward, A.S.A.
Robert Richards
Clerk, Waterbury J.D.
9/22/83
8c

APPENDIX D

CONFIDENTIAL

(When entries have been made on this form)

APPLICATION FOR AUTHORITY TO
INTERCEPT WIRE COMMUNICATIONS

(This form will be prepared by (1) State’s Attorneys, applying for
authority to wiretap, and (2) the panel of Superior Court judges,
acting on the application. It will be prepared in duplicate, and, per
Sec. 54-41n, (Gen. Stat.) submitted by the panel to the Chief

yourt Administrator within 30 days of (a) the expiration of an
order or (b) an extension thereof which was approved by the panel
or (c) the date an application for an order or extension was denied.)

3.

PART | - TO BE COMPLETED BY
STATE’S ATTORNEY

1, John D. Labelle | Esq_, State’s Attorney for _ Hartford
(Name of Applicant)

County, under the, authority granted in Gen. Stat. Sec.

54-41b and pursuant to Sec. 54-41c request per-

mission to intercept the wire communications of:

Daniel A. Wrisley, a/k/a
Daniel A. Risley and others unknown

(Identity of person, if known)
of Plainville, Connecticut who has committed or is
(Address)
committing or is believed to be able to provide evidence per-
taining to the following offense(s) which are listed in Sec.

54-41b and which provide the basis of this
application:
_19-480 (a) Sale of Narcotics

(Stat. Sec.) (Brief Description of Alleged Offenses - ex: Gambling)
1d

CONFIDENTIAL

(When entries have been made on this form)

The facts and circumstances giving the evidence of the

ae
offenses were initially discerned on Mon a 1973___at
te

in the evening hours
(Tumey

(Note: Per Sec. 54-41¢(7) date must be not more than 15 days next
preceding the date of this application.)

Refer to the attached affidavit of
These facts are as follows: Sgt. Lester Forst which is made a
(Gwe-full end-complete satement of -the
part hereof and attached as Exhibit ‘‘A’’. There is also
evidential facts and cite source. If informant, give basis of his knowledge
incorporated by reference the applications and affidavits
or belief, and estimate of his reliability. Supplementary sheets may be
submitted to this panel for an order of interception and an
extension of said “A xo designated as 73-03. (See sheet attached)
attached.)

The allegations of fact in this application are not based on the per-
sonal knowledge of the applicant, but based on information and
belief from the matters set forth in the aforementioned affidavits
and application.

=

/.

The intercepted wire communication will constitute material
evidence that pursuant to Sec. 54-4lc (9) can
assist in the apprehension, prosecution, and/or conviction of
the person named in par. 2 above for the following reason(s):
Wrisley, a/k/a
It is anticipated that Risley and his associates in heroin will
discuss the sale of heroin in said communications, which

conversations will be evidence themselves and lead to the
issuance of arrest and search warrants.

The content of intercepted wire communications, or evidence
derived therefrom, will be put in the following use(s):

2d

9.

10.

CONFIDENTIAL
(When entries have been made on this form)

The same will be used as evidence in criminal prosecutions
of Risley and others for the sale of narcotics, to conduct

further investigation into the trafficking in narcotics.

Pursuant to Sec. 54-41c (8) following is a list of
pervious wiretap applications or authorizations bearing the
name of the person(s) listed in par. 2 or related to this case:
Application Auth’zn Pertinent

No. & Date Number Name Facts Panel Action

NONE

CHECK BOX IF PERTINENT:

) No previous taps, to the best of my knowledge.
(X) Name checked against State Police files.

(X)_ Name checked with U.S. Attorney and/or FBI.

I request permission to intercept wire communications made
from/to the following telephone numbers which are believed
to be used by the person(s) listed in par. 2:
Daniel A. Wrisley, a/k/a
747-5361 Daniel A. Risley, 17 Dewey PI., Plainville, Conn.

(Phone Number) (Type of Premises in which located - ex: Apt., office, etc.)
Permission to intercept is sought for the period from 10 days.
from date of order 24 hoursaday_ to
during the hours from
ent thx cntliethted ehieadins or saan adiuaiaien tak
obtained. If interceptions beyond the objective are needed,
give reason(s):

3d

11.

12.

13.

14,

15.

CONFIDENTIAL
(When entries have been made on this form)

_Due to continuing and heavy nature of heroin, trafficking —
by Risley and his associates such is required.

In addition to the authority to wiretap, pursuant to Sec. 3(10)
of PA 68, I also request authority to (CHECK PROPER BOX)

C) make secret entry into the premises of the person(s)
named in this application in order to install an inter-
cepting device which is not otherwise practicable.

install a pen register or similar device to tract telephone
numbers called within the exchange. -

I request that the following parties (ex: SNETCO, landlord,
etc.,) be required to furnish the following assistance:

SNET Co. to supply technical information required to

locate terminals and wires of telephone in application.

This request was initiated by; _ Trooper John F. Petrowski,
(Rank & Name of Official, and

Connecticut State Police Department.
Affiliation (ex: State or local police)

Information obtained by intercept may be disclosed to:

State’s Attorneys Bianchi, McDonald, LaBelle, Markle,

State Police Commissioner Fuessenich, Lieut. Ragazzi,
(Rank, Name, affiliation and Qualifications of investigative or law

et al, as on attached list marked Exhibits ‘‘B’’ and made

a part hereof.

enforcement officer.)

The following investigative or law enforcement officers, on
the basis of their specialized training or experience and
the requirements set forth by Sec. $4-41b and 54-4 1c

meeting
(2) will be making the interceptions:
4d

CONFIDENTIAL

(When entries have been made on this form)

See attached list Exhibit ‘‘C'', made a part hereof, all of

whom are members of the Connecticut State Police De-
partment, and have had either training with that department

or the New York or New Jersey State Police Department

in electronic surveillance.
(Rank, Name, Agency - List Qualifications on separate sheet if necessary)

16. I certify that, for the reasons given below and pursuant to
Sec. 54-41c (6).

a. to the best of my knowledge, other normal investigative
procedures with respect to the offense(s) have been tried
and have failed, are not promising, or are deemed to be
dangerous to employ, and as is set forth in more par-
ticularity in paragraphs 4# of the attached Exhibit ‘‘A’’.

46 ont 37

b. this application does not involve forivileged persons or | s
facilities, as enumerated in Sec. 54-41h and if

privileged wire communications are intercepted they will
not lose their privileged character, and

c. the equipment to be used protects the recordings from
editing or alterations.

17. Following is a list of items attached to this application:
Exhibit ‘‘A’’, Exhibit ‘‘B’’, Exhibit ‘‘C’’.

(ex: Affidavits)

Date of Application Signature & Title of Person Making Application
ond Aflaming the Above laformanion.

5d

18. Wherefore the applicants request the issuing panel by unani-
mous vote, to enter an ex parte order authorizing the inter-
ception of wire communications within the State of Connecti-
cut and make the following finding that on the basis of the
facts submitted by the applicants that there is probable cause
to believe that:

1.

Daniel A. Risley of Plainville and Burlington, Arnold
“Tufty” Albert of Terryville, Allen LaFleur of parts un-
known, Kathleen Paradis, of parts unknown, “Frank”, last
mame and address unknown, “Skippy” last name and
address unknown have committed and are committing
the crime of sale of narcotics in violation of Section 19-
480 of the General Statutes.

Telephone communications over telephones 747-5361 in
the Town of Plainville, Connecticut, will constitute
material evidence that the offense of sale of narcotics, in
violation of 19-480 of the General Statutes, has been and
is being committed and will materially aid in the appre-
hension of the perpetrator of such offense.

Such communications are not otherwise privileged.

Other normal investigative procedures with respect to the
sale of narcotics have been tried and have failed and
reasonably appear to be unlikely to succeed if tried, and
are too dangerous to employ, such as physical surveillance
and direct undercover contact with the suppliers of heroin
to Albert and Wrisley.

. The telephone facilities and places of such facilities are

not those described in Section 54-41 (h), General Statutes.

. The investigative or law enforcement officers to be author-

ized to intercept the wire communications are qualified
by training and experience to execute the interception
sought.

6d

7. Not more than thirty-four orders authorizing interception
have been previously issued by all panels in the calendar
year 1973.

The applicant further requests that such order continue until

Wrisley’s aka Risley’s JDL
the objective of the interception, the disclosure of Albert’s,/
and LaFleur’s source of heroin and the disclosure of the nature

Albert's aka Wrisley’s JDL

and extent of LaFleur’s, /Risley’s, / and others heroin tra-
fficking in the area, is attained, or for ten days next succeed-
ing the date of issuance of the order, whichever occurs first.

Dated at Hartford, Connecticut, this 28th day of March,

1973.
John D. LaBelle
John D. LaBeile, State’s Attorney
for Hartford County
STATE OF CONNECTICUT Hartford
ss

COUNTY ‘OF HARTFORD

The foregoing instrument was signed, sworn to and acknow-
ledged before me this 28th day of March, 1973 by John D.
Labelle.

Irene L, Kagan

Notary Public
My Commission Expires Mar. 31, 1974

7d

EXHIBIT A.

In the matter of the interception )
of wire communications of an in- )
dividual known as Daniel A. Wrisley )

a/k/a Daniel A. Risley
and other ucknown persons engaging )
in a narcotic selling enterprise )
from telephone facility number )
747-5361, listed to Daniel A. Wrisley )
a/k/a Daniel A. Wrisley
17 Dewey Place, Plainville, Conn- )
ecticut, 2nd floor.

STATE OF CONNECTICUT
SS HARTFORD, CONNECTICUT
COUNTY OF HARTFORD

Sgt. Lester Forst, being duly sworn according to law, deposes and
says:
1. Application is hereby made for an order authorizing the in-
terception of wire communications as hereinafter specified.

2. The affiant, Sgt. Lester Forst, is a member of the Connecticut
State Police Department. In such capacity, he is empowered
to conduct investigations of and make arrests for the offense
of Sale of Narcotics in violation of PA 278 February Session,
1972, Section 24 (19-480A) of the General Statutes. He is
currently responsible for the investigation detailed herein-
after involving the foregoing offense in aid of which investi-
gation this application is made.

3. The interception will be made by means of electronic equip-
ment installed and maiatained by members of the Criminal
Intelligence Division of the Connecticut State Police, each of

8d

whom has undergone at least two weeks of specialized train-
ing in the use of said electronic equipment and the techniques
required fo

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0636%3A1. Public record. Not legal advice.