Petition for a Writ of Certiorari — Cirillo v. United States

Supreme Court brief1974

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In THE ; Jum 6 S14

Supreme Court of the ‘Materoorc.s.|

one to L832

ALPHONSE CIRILLO and VINCENT MURPHY,

Petitioners,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

HAROLD BORG

Attorney for Aiphonse Cirillo

123-60 83rd Avenue

Kew Gardens, N.Y. 11415

212-261-1200

ARNOLD E. WALLACH

Attorney for Vincent Murphy

253 Broadway

New York, N. Y.

212-227-0959

Dick Bailey Printers © P.C. Box X, Staten Istand, N.Y. 10302 © Tel.: (212) 447-5358

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TABLE OF CONTENTS

Page

The Opinion of the Court Below .................00000: 2

DN Aina nackaasGbnadcasronansesaendsnaesiants 2

Questions Involved PTV e TTT TUTTI TTT TTT LETTE 3

Constitutional and Principal Statutory Provisions Involved . 3

OREN GND nn cn ccc cccccccccesescccscenscss 7

Reason for Guateg SEN ck ctbandbwhewnneenscencane 14

he The first wire us order or warrant was defective in that it

failed to contain a direction to the authorities to minimize

the interception to be conducted thereunder and this

failure required the suppression of all products as well as

derivative evidence secured thereunder. .............. 14

B: The Court below should have directed that an evidentary

hearing be had in the trial court to determixe whether the

authorities minimized properly. ....................: 34

C: Wire tapping is unconstitutional and violative of the

’ fundamental right of privacy under the 4th, Sth, 9th and

14th Amendments to the Federal Constitution either as

applied to the facts of this case, or on the face of such

statutes. ......... TET SLT TTT TT CET OTE TT OTT ee 40

PEP re rrr Try Terr rr Tre TT TT ee Tey 45

Appendix A — Decision of Second Circuit ............... 47

Appendix B — Memorandum and Order of District Court . 99

Appendix C — Order of Appellate Division Granting

SROUIOIND o svc e nd ccnccccceenensnseseesseenass 87

Appendix D— Commitment (Cirillo) ................... 91

Appendix E— Commitment (Murphy) ..............--. 93

Cases Cited

Alderman v. United States, 394 U.S. eee 39

Application of the United States for Relief, 427 F.2d 639

GEG, PUPP MN MIIOED Sb cciceccceccsnvencsanse 16

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

Boyd v. United States, 116 U.S. 616,635 ................ 28

Gelbard v. United States, 408 U.S. 41 (1972) ............. 14

Griswold v. Connecticut, 381 U.S. 479(1965) ..... coenens 42

Hudson v. United States, 402 U.S. 965 .................. 40

In Re Lanza, 6 Misc. 2d 411, 163 N.Y.S. 2d, 576, at pages -

“RO eT 43

Jonnson v. United States, 333 U.S. 10, (1948) ............ 38

Kahn v..U.S., — U.S. —, (1974), 39 L. Ed., 2d 225 ....... 41

Katz v. United States, 389 U.S. 347 (1967) .............. 41

Osborne v. United States, 385 U.S. 323 .................41

People v. Glen, 20 N.Y. 2d 252, Cert. Denied sub nom

Baker v. New York, 409 U.S. 849 (1972) .............. 30

People v. Holder, 69 Misc. 2d 863, 331 N.Y.S. 24557 ..... 22

ee lll

pina ene ne

Page

People v. Kennedy, 75 Misc. 2d 10, 347 N.Y.S. 2d, 327 .... 22

People v. Pieri, 69 Misc. 2d 1085, 332 N.Y.S. 2d, 786, 789 . 21

People v. Solomon, 74 Misc. 2d 926, 346 N.Y.S. 2d 938

(Supreme Court, Kings County, 1973) ................ 26

People v. Varney, 32 A.D. 2d 181, 31 N.Y.S. 2d 330

(Supreme Court, App. Div. 2nd Dept. 1969) .......... 32

Roadin v. Kentucky, — U.S. — , 37 L. Ed., 2d 757 (1973) .19

Ree v. Wake, 490 U.S. 11S (ISD 2.22. ccccsvccccscccsess 42

Sgro v. United States, 287 U.S. 206,210 ................ 30

State v. Siegal, 13 M.D. App. 444, 28S A. 24671 ......... 20

State of New Jersey v. Sidoti, 116 N.J. supra, 70, 280 A. 2d

NOD eon ccnscnce ahacabebatcnsenevesonnes 21

United States v. Bynum, 475 F. 2d 832 (Cir.-2d, 1973) ..... 39

United States v. Cox, 462, F. 2d 1293 (Cir.-8th, 1972) 1300 . 19

United States v. Focarile, 340 F. Supp. 1033 (D.C., Dist.

Md., 1972) 1044, 1045, 1046, 1047, Subnom .......... 20

United States v. Giordano, May 13, 1974, No. 72-1057, 42

U.S. Law Week, 4042, 4049 ......0.....0.......005e 15

United States v. Huss, 482 F. 2d 38, (Cir.-2d. 1973) ....... 38

United States v. Kahn, — U.S. — 39 L. Ed., 225 at page

PUN AS casas cease sdapenssecayuales 15

U. S. Manfredi, cited on page 3307 of the Court's decision

and opinion below, 488 F. 2d 588, 598 (Cir. 2d-1973) ... 24

United States v. Rizzo, 492 F. 2d 443, (Cir.-2d 1974) ...... 24

United States v. Scott, 331 F. Supp. 233 (D.C., Dist. of Col.,

errr rrr rrr Trrrret re Terr Ty Tree 15

United States v. Thomas, 489 F. 2d 664 (Cir. 9th, 1973) .... 29

United States v. Tortorello, 480 F. 2d 764, (Cir. 2d 1973),

Cert. Demied, 414 U.S. 866 (1973) ............0.0 000s 20

United States v. Ventresca, 380 U.S. 102 (1965S) .......... 28

United States v. White, 401 U.S. 745, (1971) ............. 42

Weiss v. United States, 308 U.S. 321, 1939 .............. 26

Whitely v. Warden of Wyoming Penitentiary, 401 U.S. 560

Py erry Tyr rere eT Terr rere Ter ee 38

Other Authorities

Rule S (f) of the Rules of Civil Procedure for the District

i . cb ckbebeWe heehee Knshnpencnesbactereess 38

Section 700.30 of the Criminal Procedure Law of the State of

EN 825 GRE REKESEESEOA 05400 bed c ee RCO nae 21

11A McKinney's Consolidated Laws of New York, Criminal

Procedure Law, Section 700.30 .............eeeeeees 7

United States Constitution, Amendments V, IX, XIV ..... 3

47 U.S.C. 605 (Federal Communications Act) ............ 4

SUR cn bubeantarnantadetscadsccnensenacedes 5

SG anbcn cred seb cnbecenccvededercdcanere 5

Knee reads ceeded beacararaneceavenscees 6

en Ve Tmo Spare as —_

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM — 1973 |

NO.

ALPHONSE CIRILLO and VINCENT MURPHY,

Petitioners

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioners, Alphonse Cirillo and Vincent Murphy,

pray that a writ of certiorari issue to review a final judgment and

order of the’ United States Court of Appeals, Second Circuit.

entered May 7, 1974 (Exhibit A infra) which affirmed the

| judgment of the United States District Court, Eastern District of

New York (Honorable Orrin G. Judd), entered July 30, 1973, as

| to the petitioner Alphonse Cirillo and the judgment entered

September 10, 1973 as to the petitioner Vincent Murphy,

whereby the said petitioners were convicted as follows:

Both petitioners were found guilty of conspiracy to distribute

heroin in violation of 21 U.S.C. 846; both petitioners were

convicted of possession with intent to distribute one kilogram of

heroin (count 1); both petitioners were convicted of distribution

of the identical quantity of heroin involved in count 1 (cvunt 2);

both petitioners were convicted of attempting to distribute 1/2

kilogram of heroin (count 7).On July 30, 1973 the petitioner,

Alphonse Cirillo was sentenced to 14 years, 9 months im-

prisonment and 10 years special parole on counts 1 and 2; 10

years imprisonment to be served consecutively to the

aforementioned term, and 10 years special parole on counts 7

and 9. Cirillo was also fined the sum of $10,000 on count 1 and

$10,000 on count 9. On October 12, 1973 Murphy was sentenced

to concurrent terms of 10 years imprisonment and 7 years special

parole and a $5,000 fine on count 9.

THE OPINION Or THE COURT BELOW:

The opinion and decision of the United States District

Court, Eastern District of New York, denying a motion made by

the petitioners to suppress the evidence on the grounds of illegal

wire tapping. is set forth below (Appendix B, infra). Such

opinion is not otherwise reported.

The opinion of the United States Court of Appeals is also set

forth in Appendix A as aforesaid. Such opinion is not otherwise

reported as yet.

JURISDICTION:

The order and judgment of the United States Court of

SOOT ae y a

— eee eee acta ot

Appeals for the Second Circuit is dated May 7, 1974.

Jurisdiction of this Court is invoked, made and conferred under

28 U.S.C. 1254(1).

QUESTIONS INVOLVED:

(A) Were the Nev. York Staie wire tap warrants or orders

valid where the first of successive warrants failed to provide and

direct that the authorities minimize the electronic eavesdropping

to be conducted thereunder?

(B) Did the petitioners receive a fair hearing on a motion to

suppress the evidence where the trial court denied the motion

without affording the petitioners an evidentiary hearing as to the

issue of minimization?

Omnibus Crime Control and Safe Street Acts constitutional

under the ist. 4th, Sth, 9th and 14th Amendments to the Federal

Constitution also bringing for review the constitutionality of the

New York State statutes authorizing electronic surveillance.

such statutes being found in 11A McKinney's Consolidated Laws

of New York Annotated, Sections 700.0S of the Criminal

Procedure Law of the State of New York?

CONSTITUTIONAL AND PRINCIPAL

STATUTORY PROVISIONS INVOLVED

Constitution of the United States, Amendment IV:

“Searches and Seizures: The rigi:t of the people to be

secure in their persons, houses. papers and effects. against

PAS Secige SP |

_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.”

AMENDMENT V:

‘“*..., nor be deprived of life, liberty or property without

due process of law; ...

AMENDMENT IX:

“The enumeration under the constitution of certain

rights, shall not be construed to deny or disparage others

retained by the people.”

tne

AMENDMENT XIV, SEC. I

‘...: mor shall any state deprive any person of life,

liberty, or property, without due process of law; . . .”

47 U.S.C. 605 (Federal Communications Act)

Unauthorized publication of communications. — Except

as authorized by Chapter 119, Title 18, U.S.C. Code (18

U.S.C. Sections 2510-2520) no person receiving, assisting

or receiving transmitting or receiving and transmitting any

interstate . . . communication by wire . . . shall divulge or

publish the existence, contents, ... thereof, ...”

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18 U.S.C. 2515

“Prohibition of Use as Evidence of Intercepted Wire or

Oral Communications. — Whenever any wire or oral

communication has been intercepted, no part of the

contents of such communication and no evidence derived

therefrom may be received in evidence at any trial,

hearing, or other proceeding in or before any court, grand

jury, department, officer, agency, regulatory body,

legislative committee. or other authority of the United

States, a State or a political subdivision thereof, if the

disclosure of that information would be in violation of this

chapter .. .”

18 U.S.C. 2516

‘*(2) The principal prosecuting attorney of any state, or the

principal prosecuting attorney of any political subdivision

thereof, if such attorney is authorized by a statute of that

state to make application to a state court judge of com-

petent jurisdiction for an order authorizing or approving

the interception of wire or oral communications, may

apply to such judge for, and such judge may grant in

conformity with Section 2518 of this chapter and with the

applicable state statute an order authorizing, or approving

the interception of wire or oral communications .. .”

18 U.S.C. 2518(5)

**. .. Every order 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 com-

munications not otherwise subject to interception under

this chapter .. .” ,

(8)(A)

“Immediately upon the expiration of the period of the

order, or extensions thereof, such recordings shall be

made available to the judge issuing such order and sealed

under his directions. Custody of the recordings shall be

wherever the judge orders .. .”

(10)(A)

‘Any aggrieved person in any trial, hearing, or proceeding

in or before any court, department, officer, agency,

regulatory body or other authority of the United States, a

State. or a political subdivision thereof, may move to

suppress the contents of any intercepted wire or oral

communication, or evidence derived therefrom, on the

grounds that — (i) the communication was unlawfully

intercepted; (ii) the order of authorization or approval

under which it was intercepted is insufficient on its face;

or (iii) the interception was not made in conformity with

the order of authorization or approval.”

11A McKINNEY’S CONSOLIDATED LAWS

OF NEW YORK, CRIMINAL PROCEDURE LAW,

SECTION 700.30:

‘An eavesdropping warrant must contain: (7) 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 eavesdropping under this article,

STATEMENT OF THE CASE:

The origin of this case is found at a time when the New York

City police. the Kings County District Attorney and Federal

authorities applied on October 31, 1972 to a judge of the

Supreme Court of the State of New York, Appellate Division,

Second Department, for the issuance of a wire tap order or

warrant, subjecting Cirillo’s telephone to electronic surveillance

or wire tapping. The application was based on the affidavit of

the District Attorney of Kings County, City and State of New

York, who relied principally on an affidavit of a police officer

named Douglas LeVien, a New York City police officer. The

applicants were successful and the order was granted (the order

is found in Appendic C, infra).

After the time allotted in the order, for surveillance, the

authorities succeeded in procuring successive and renewal orders

trom diverse state Supreme Court judges. The original order of

October 31, 1972 was renewed November 29, 1972 and further

renewed for the following dates: December 27, 1972, December

29, 1972, January 25, 1973, February 27, 1973, and March 29.

a i ee PR A OS SRE at ew 2 RETIRE TE TS

: 8

| 1973 (16-300). *

The first order or warrant of October 31, 1972 while referring

to the crimes under investigation and authorizing the in-

terception of conversations relating to narcotics, did not contain

any direction to the authorities to minimize the interception (16-

5 19). The renewal warrants contained such direction (70, 111,

: 147, 173, 223, 248, 273).

3 As a result of the interceptions, conducted under the

4 respective orders or warrants, the petitioners were arrested

3 March 15, 1973. At the time of the arrest a search and seizure of

3 the heroin was had.

: Prior to trial, the petitioners made a motion (Murphy joined in

; the motion made by Cirillo) in the trial court for the suppression

| of the evidence (301-339).

Cirillo by his counsel with Murphy’s joinder, submitted an

extensive affidavit alleging the factual basis for the granting of

relief.

Sree en a mai aan) seed

It was only when the motion came on to be heard that the

United States Attorney first submitted affidavits in support of

the opposition to the petitioners’ application. The substance of

the government's opposition was to the effect that while the

initial warrant or order did not contain a direction to the

authorities to minimize the interception, in practice

minimization was conducted (340, 348, 352, 353).

No evidentiary hearing was conducted by the Court that

ultimately denied the motion. As a matter of fact, the motion

*( +) This refers to tht pagination of the joint appendix filed in the Court below by

the petitioners.

T Te ee

| ee

was then and there denied in open Court, the Court adding that

a written decision would be filed subsequently. And so after the

denial the Court did render a written opinion or decision setting

forth the grounds of the denial (Appendix B, infra). The Court

in its decision acknowledged that the petitioners raised the issues

that the first order or warrant did not provide for a direction to

the authorities to minimize the interceptions.

The first warrant or order, the seminal warrant, designated

Cirillo as a suspect and his telephone number, 212-631-8570, as

being the suspect phone used (16, 17). To procure this warrant,

the authorities submitted the affidavit of the District Attorney of

Kings County, who adopted or ratified an affidavit by a police

officer named LeVien who was investigating the case (35-38, 39-

67). The police officer’s affidavit alleged that on October 6, 1972

a reliable informant related hearsay to Cirillo and his address.

The police officer further related that the informant told him

that on October 2, 1972 he met the petitioner Cirillo with a

person named Inciarrano and a “John Doe Murphy’. The in-

formant characterized Inciarrano as the petitioner’s ‘“‘con-

nection” and Murphy as his partner (41, 42). The day in

question, namely, October 6, 1972, the informant went to

Cirillo’s home where he noticed a telephone described as a

“country telephone” and an additional telphone in another part

of the house described as a ‘‘princess telephone”’ (42, 43).

The informant’s hearsay further related that the purpose of

the meeting was the “transcribing” of about 200 kilograms of

heroin (44). The “connection” was designated by the informant

as a “Cuban Jew’’ who was mentioned by Cirillo. The reliable

and confidential informant would further have it that Cirillo told

him that he received large amounts of heroin from the “Cuban

Jew” four (4) times a year and that the “Cuban Jew" was in

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Florida. Cirilio guaranteed about 20 kilograms of heroin to

Inciarrano at $25,000 a kilo (29). The informant’s hearsay

further continued to the effect that Cirillo told him that a

shipment would occur after November 1, 1972 and that it would

be received at a motel in New York (45). According to the in-

formant he actually saw a quarter of an ounce of heroin in the

premises used for “‘snorting”’. The informant also saw Cirillo use

a telephone and talk about the sale of heroin over it. Murphy

also used the telephone for the same purpose (45, 46).

On October 19, 1972 the informant and Inciarrano went to

Cirillo’s house where they discussed 200 kilograms of heroin,

Cirillo telling them that the “Cuban Jew’ went to Florida to

arrange for a shipment (S3, 54). It developed however that the

informant also stated that at the time of this conversation the

“Cuban Jew” was allegedly staying in Cirillo’s house but that in

the future he was going to Florida to arrange for the shipment

(S4). The informant would further have it that a call from

Florida was expected by Cirillo as to the time the shipment

would be made (54, 55). Cirillo was said also to have told the

reliable and confidential informant that he kept 20 kilos of

heroin in his garage. On October 19, 1972 the informant stated

he used Cirillo’s phone to discuss the sale of narcotics (56). On

October 25, 1972 the informant called Inciarrano and discussed

cocaine that Cirillo might be interested in. This call emanated

from the office of the District Attorney of Kings County; thus,

the informant asked Inciarrano as to whether he could call

Cirillo and Inciarrano consented. Consequently the informant

called Cirillo. That conversation was recorded by the authorities

and was set forth in the police officer’s affidavit (S7-62). The

police officer interpreted the conversation as relating to the

petitioner's use of cocaine and also referring to the shipment of

heroin from Florida (62-64). Parenthetically it is confusing as to

why the police officer had to interpret such a conversation when

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all he had to do was ask the informant.

Through the product of eavesdropping under the first

warrant, which did not contain a direction to minimize. the

authorities procured successive warrants (68-70, 109-111, 145-

147, 170-173, 221-223, 245-248, 271-273). The authorities in

seeking the successive warrants, set forth some of the intercepted

conversations procured and seized under each prior warrant, in

their respective affidavits submitted in support of each respective

application to procure such warrants (74-88, 90-104, 116-136,

153-155, 157-163, 179-192, 195-213, 228-238, 254-264, 279-

292). In investigating this case, and conducting electronic

surveillance, the authorities finally on December 5, 1972 saw a

person they knew as Walter Sorrenson enter a movie on a street

in Brooklyn, go to a bar and thereafter leave by automobile.

They followed Sorrenson and saw him enter a building at

another location in Brooklyn and emerge from that building. It

now developed that Walter Sorrenson was designated by the

police as the “Cuban Jew’’. The observations as to Sorrenson

further disclosed that he left the building with a woman and

went to another location in Brooklyn. The authorities claimed

that Sorrenson was listed with the State and Federal authorities

and was also known as Benjamin Casal, having a telephone

number in Florida, namely 305-864-7124. Prior to these ob-

servations of Sorrenson, the police also saw him meet Cirillo in a

diner and speak to him. However, the substance of the con-

versation was unknown to the police (138-141).

In opposing the motion, the government submitted three

affidavits verified June 11, 1973, the day before the motion came

on to be heard. These were served the day the motion came on to

be heard (4, 366-368). The substance of these affidavits were

that the Assistant District Attorney of Kings County and the

particular United States Attorney knew all about minimization

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and directed the authorities to minimize the interceptions under

the warrants (343). As part of the opposition a United States

Agent named Dovetko submitted his affidavit describing that he

was cooperating with the state authorities investigating this case,

and that prior to the application for the first wire tap order or

warrant the government attorney called his attention to

minimization; that the agent thereafter visited the ‘plant’ and

saw the police actually minimize the surveillance (345-346).

An analysis of the minimization will be hereinafter set forth by

counsel for the petitioners. At trial, a police officer named

Garcia testified. He stated that he had occasion to listen to all

the tapes in this case (388). He considered himself an expert on

interpreting conversations electronically overheard, in regard to

narcotic investigations (390). However, when asked whether he

was familiar with the term ‘‘argot’’ in relation to narcotics he

didn’t know the meaning of the word “argot”’.

Garcia testified that there were 899 wire tap orders executed

by the District Attorney's office before. He admitted that he

heard conversations of Mrs. Cirillo over the subject telephone

and also the conversations engaged in by Cirillo’s children (390,

391). These were partial conversations (391).

Garcia further explained that while auditioning he would

attach a secondary meaning to common expressions depending

upon the context of which such expressions would be used (391,

392). Thus he was asked whether a conversation relating to

children going to school could relate to narcotics. He couldn't

recall whether Cirillo’s children spoke about going to school

however (392). Garcia listened for roughly 150 to 200 hours

(392).Garcia admitted that this was more than the average time

in regard to auditioning (392, 393).

2S Sa PERSO ata eS

Garcia did state that he did listen to the children when they

spoke. But then he added it was only calls that he felt were

important that he listened to (393).

However, because Garcia suspected the petitioner Cirillo of

dealing in narcotics he placed more importance to what Cirillo

said.

Thus, when asked whether he would attach a sinister meaning

if he heard Cirillo talking about sending his children to school,

the police officer stated that in this case he would attach such a

sinister meaning (393, 396). Garcia stated that he didn't listen to

the children of Cirillo when he spoke (393).

This witness further admitted that he overheard Cirillo talking

over the telephone in regard to the size of clothing his children

wore (397). He overheard a co-defendant’s wife a Mrs.

Sorrentino on the telephone on numerous occasions as well as

her children (397, 398). He actually overheard Mrs. Sorrentino

say over the telephone that she wore torn clothes (398). However

this police officer admitted if her husband, Mr. Sorrentino,

spoke about that subject, he would attribute a criminal meaning

to those words (398).

In regard to Cirillo’s wife, he overheard her speak twenty-five

(25) times (399). In regard to Cirillo’s children he overheard

them talk over ten (10) times. Then Garcia admitted it was

probably twenty (20) times and could have been thirty-five (35)

to forty (40) times (399, 400).

In regard to Mrs. Sorrentino who was a co-defendant’s wife,

this police officer overheard her talk over the telephone twenty-

five (25) times (399, 400).

REASON FOR GRANTING THE WRIT:

A. The first wire tap order or warrant was defective in that it

failed to contain a direction to the authorities to minimize the

interception to be conducted thereunder and this failure

required the suppression of all products as well as derivative

evidence secured thereunder.

In Geibard v. United States, 408 U.S. 41 (1972) it was stated

on page 446 that:

“In Title III, Congress enacted a comprehensive scheme

for the regulation of wire tapping and electronic sur-

veillance ... Title II] authorizes the interception of

private wire and oral communications, but only when law

enforcement officials are investigating specific serious

crimes and receive prior judicial approval, an approval

that may not be given except on compliance with stringent

conditions ... If a wire or oral communication is in-

tercepted in accordance with the provision of Title III, the

contents of the communication may be disclosed and used

under certain circumstances ... Except as expressly

authorized in Title II], however, all interceptions or wire

and oral communications are flatly prohibited .. .”’

Concededly, the first order or warrant did not follow the

legislative command found in 18 U.S.C. 2518 (S) that such order

or warrant contain a direction to minimize. It is suggested, that

to validate such an order because the authorities could refer to

such limitation elsewhere, is to rationalize what Congress stated

must be expressly provided for in the order. For it is further

provided in 18 U.S.C. 2518(10)(A)(ii). that the evidence must be

suppressed where the order authorizing interception is in-

sufficient on its face.

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The order in this case \ insufficient on its face and therefore

void. It could not be used at all. ,

In U.S. v. Giordano, May 13, 1974, No. 72-1057, 42 U.S. Law

Week, 4642, 4649, it was stated by this Court in part that:

“. .. The words ‘unlawfully intercepted’ are themselves

not limited to constitutional violations, and we think

Congress intended to require suppression where there is

failure to satisfy any of those statutory requirements that

directly and substantially implement the congressional

intention to limit the use of intercept procedures to those

situations clearly calling for the employment of this ex-

traordinary investigative device. .. .”

In analyzing the legislative history of Title II], it was further

stated by this Court that:

*. .. but the report also states that the section provides

for the suppression, of evidence directly or indirectly

obtained ‘in violation of the chapter’ and that the

provision ‘serves to guarantee’ that the standards of the

new chapter will sharply curtail the unlawful interception

of oral and wire communications. . . ."’, at page 4649.

That minimization is a substantial issue, may be inferred by

the fact that this very Court specifically noted that it was not an

issue in its opinion found in U.S. v. Kahn, U.S. 39

L.Ed., 22S, at page 234, 94S. Ct. . 1974.

Statutes allowing wire tapping it is submitted must be strictly

construed and kept within the controls or confines that Congress

imposed.

As was stated in Application of the United States for Relief,

427 F.2d 639 (Cir.—h, 1970) at page 643:

ae The government's entire case rests upon what it

believes may be implied from the act, and upon other

general principles summarized above.”

“Title Ill of the act is rather extensive, containing ten

sections, some quite lengthy. It purports to constitute a

comprehensive legislative treatment of the entire problem

of wire tapping and electronic surveillance, complete with

the extensive introductory congressional findings. The

provisions contained in Title III state, in precise terms,

what wire tapping and electronic surveillance is prohibited

and what is permissible. As to the latter, meticulous

provision is made with respect to the necessity and manner

of obtaining prior or subsequent judicial approval, the use

which may be made of intercepted information, the way in

which aggrieved persons may test the validity of the in-

terception, and the collection and transmission to

congress each year of information concerning such ac-

tivity.”

Nor do we find any provisions in the Act or in the history

of its enactment which points in the direction of applied

authority. Quite the contrary, consideration of the con-

stitutional significance of the legislation, the relevant

provisions of the Act, and the legislative history tend to the

opposite direction.”

“... ithe Act is to survive a constitutional challenge, a

question which we do not here reach, it can only do so by

_ giving the Act as limited a construction as is warranted by

ee Oe a ee et ee ee

the language. The construction which the government

would give Title II1, however, whereby an important

judicial power is not expressly provided for, would be

implied, manifest not unlimited but an expansive reading

of the act.”

On page 644 it was further stated that:

“*. . . the congressional findings set forth in Section 801 of

the Act, at the head of Title III, intent to define with

utmost particularity the circumstances and conditions

which an interception may be effectuated. This intent is

also manifested in the Senate Report referred to

above...”

“Congress thus acted advisedly when it formulated and

enacted the legislation incorporated in Title III. It was

fully aware of the physical problems involved in making

investigative wire taps, but it was nevertheless determined

to enact a carefully circumscribed act...”

In U.S. v. Scott, 331 F. Supp. 233 (D.C., Dist. of Col., 1971)

it was stated on page 246 that:

“Contrary to the contention of the defendants the statute

does not require the Order to state how the agents are to

minimize receipt of communications ‘not otherwise

subject to interception’; nor does the Fourth Amendment

prescribe such a requirement. It is sufficient for the Order

to state the requirement and direct the officer to carry out

the mandate of that order. Whether the surveilling agents

in this case actually did conduct the intercept ‘in such a

way as to minimize the interception of communications

that are (not) otherwise subject to interception’ is a:

separate question which will be discussed in another

en ee

(De cats tecnica ites ms otras oye

section of this memorandum.”

“A basic requirement of 18 U.S.C. 2518 is that a neutral

detached authority be interposed between the police

department . . . The order of January 24, 1970 in its final

paragraph allows for continued judicia! supervision and

control by that ‘neutral anc detached authority’ during

the execution of the order...”

In U.S. vy. Scott, supra, at page 247 there was an

acknowledgement by the Government as phrased by the Court.

This was as follows:

‘As the government has contended ‘Title III . . .” was an

attempt among other things to structure a limited system

of wire surveillance and electronic eavesdropping . . . One

of the limiting provisions of the statute is found in U.S.C.

2518(S) .. .”

“This mandate was clearly set forth in the . . . order. It

was the opinion of this court that these limiting provisions

satisfied the requirements of 4(c) and (S) and thus made

the order valid.”

Consequently this was a clear holding that the converse,

namely that a warrant which does not contain a direction for

minimization is void. ;

Because of the sensitivity involved in wire tapping, and the

extreme intrusiveness, all without prior notice of purpose and

authority, it would seem that the usual standards applying to

search warrants are inapplicable to eavesdrop warrants. It is

submitted that the subject matter of the search and seizure

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determined the respective standards applicable to the discreet

searches and seizures. In other words, the more intrusive the

search the more is required of the authorities. As was stated in

Roadin v. Kentucky, U.S. , 37 L.Ed., 2d 757 (1973) at

page 763:

the Fourth Amendment proscription against

‘unreasonable seizures’, applicable to the states . . ., must

not be read in a vacuum. A seizure reasonable as to one

type of material in one setting may be unreasonable in a

different setting or with respect to another kind of

material...”

Then on page 764 of 37 L. Ed. 2d it was stated that:

“. . . Seizing a film, then, being exhibited to the general

public, presents essentially the same restraints on ex-

pression as to the seizure of all books in a book store. Such

precipitious action by a police officer, without the

authority of a constitutionally sufficient warrant, is plainly

a form of prior restraint and is in those circumstances

unreasonable. . . ."" (Emphasis supplied).

Therefore, the first wire tap order in this case was and is void

because it was not ‘constitutionally sufficient’.

__ Since the warrant was, it is submitted, completely void on its

face, all the wire tap warrants in this case which sprang from it

were void because the exclusionary rule infected such successive

warrants. In other words the investigation by means of electronic

surveillance in this case was void abinitio.

As was held in U.S. v. Cox, 462 F.2d 1293 (Cir.-8th, 1972)

1300: ;

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;

“The touchstone for deciding the minimization issue ts

that it rests on a statutory command and therefore turns

on the intent of Congress in issuing that directive. The

constitutional question of the discreteness, required of a

wire tap is a separate question . . . Also the fact that the

wire tap warrant included a command to ‘minimize’ is

directly attributable to the statutory requirement that the

order so specify .. .””

See U.S. v. Tortorello, 480 F. 2d 764 (Cir. 2d 1973), Cert.

Denied, 414 U.S. 866 (1973), where this Court specifically

noticed that the warrants under consideration included a

direction in compliance with Section 2518(S) of 18 U.S.C., the

statutory mandate for a specific direction in the warrant as to

minimization.

See also U.S. v. Focarile, 340 F. Supp. 1033 (D.C., Dist. Md.,

1972) 1044, 1045, 1046, 1047, Sub nom U.S. v. Giordano, 469

F.2d 522, U.S. v. Giordano, supra. See also State v. Siegal, 13

M.D. App. 444, 285 A. 2d 671 (Court of Special Appeals,

Maryland, 1971), at pages 633, 634 where it was stated that:

“We think it is also mandatory that an interception order

‘contain a provision that the authorization to intercept

shall be executed as soon as practicable,’ and a provision

that the interception ‘shall be conducted in such a way as

to minimize the interception of communications not

otherwise subject to interceptions’ under the Act. The

order. . . contains neither of these provisions . . . Even if

this statement by the issuing judge is deemed in com-

pliance with the statutory mandate, the actions of the

required provision in the order of 6 October tainted the

order of 13 October and 5 November because they each

fell on the first order . . . The invalidity of the order of 6

October would render invalid the two renewal orders.

Congress in enacting legislation authorizing electronic sur-

veillance also granted authority to the states to do so, 18 U.S.C.

2516(2). However, while the state statutory system may be more

restrictive than the federal, the State Statutes cannot be less

restrictive than the federal. See Section 605 of the Federal

Communications Act. See, in this respect, State of New Jersey v.

Sidoti, 116 N.J. supra, 70, 280 A. 2d 864, at it page 868 where it

was stated in part that:

“... the Omnibus Act imposed minimum standards

upon states with respect to the use of electronic sur-

veillance ... It was explained by the Senate Judiciary

Committee that under the Federal Law ‘states would be

free to adopt more restrictive legislation, or no legislation

at all, but not less restrictive legislation.’ S. Rep. No.

1097, 90th Cong. 2nd Sess. 98 (1968), U.S. Code Cong. &

Admin. News p. 2187...”

Section 700.30 of the Criminal Procedure Law of the State of

New York, 11A McKinney's Consolidated Laws of New York,

mandates that the warrant or order contain the provisions as to

minimization.

New York courts have construed the state statute favorably to

the petitioners’ position.

In People v. Pieri, 69 Misc. 2d 1085, 332 N.Y.S. 2d 786, 789

that:

. In the opinion of this Court, the eavesdropping

+ Chernon arson»

warrant was invalid because of its failure to include the

provisions regarding termination required by Section

- 700.30 subdivision (7)... .”

In People v. Holder, 69 Misc. 2d 863, 331 N.Y.S. 2d 557, the

defendants claimed that the wire tap order was void because it

failed to contain a direction that the authorities in executing

such order, minimize the interception of communications. On

page 566 of 331 N.Y.S. 2d it was held that:

‘For the reasons hereinafter set forth, the Court concludes

that the eavesdropping warrant under discussion is invalid

and violative of (the then state statute governing the

requirement as to minimization) . . .”

In Holder the Court in setting forth the reasons for its holding,

stated on page 568 of 331 N.Y.S. 2d:

“The Court concludes that this provision, which the New

York statute states ‘must’ be contained in the order is not

merely directory but is mandatory .. .”

In People v. Kennedy, 75 Misc. 2d 10, 347 N.Y.S. 2d, 327, the

authorities procured successive wire tap orders. The warrant

under consideration in that case, failed to contain the direction

to minimize. It was stated on page 332 of 347 N.Y.S. 2d that:

“The case before this Court differs from Focarile in that

the order in Focarile contained a provision for

minimization. The order here does not. Further, this

Court is unwilling to subscribe to the principle that the

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affidavit shows probable cause to believe that a conspiracy

is in progress, minimization should be ignored.”

It was further stated on page 333 of 347 N.Y.S. 2d that:

“At the outset here the wire tap order did not comply with

either the requirements of the New York State statute or

the Federal statute in that it failed to provide for

minimization. No evidence was presented to this Court

that this failure was the result of inadvertance. Such a

failure must result in a suppression of the evidence since

this requirement is essential to the protection of the in-

dividual in avoiding the general warrant nature of an

eavesdropping warrant. The statute was written to avoid

the general warrant prescription in Berger v. New York,

388 U.S. 41..."

“The New York statute which was written in accordance

with the opinion clearly sets forth that the warrant ‘must’

contain. . . We disagree with the People’s contention that

the word ‘must’ is not a mandate.”

The Court below in U.S. v. Tortorello, 480 F.2d 764 (1973),

Cert. Denied 414 U.S. 866 (1973), stated at page 783:

“All the Todd Associates orders included a provision in

compliance with this section. (18 U.S.C. 2518(5)). The

question raised here is whether the executing officers took

reasonable measures to minimize the interception of the

irrelevant communications.”

It is therefore submitted that that case is not relevant to the

concrete issue presented in this case.

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In a contrasting situation, found in U.S. v. Manfredi, cited on

page 3307 of the Court’s decision and opinion below, 488 F.2d

588, 598 (Cir. 2d-1973), it was held that while the warrants

under consideration, neither the original or renewal warrant

orders, however, contained any directive to this effect. This was

not fatal because the affidavits submitted by the authorities to

procure the warrants contained “‘an agreement” to minimize.

Then the Court added:

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“... In this case we feel free to analogize from U.S.

v.Tortorello, 480 F.2d at 781, which, while it apparently i

did not consider the matter as controlled by state law, held

that a New York State judge’s authorization order was

sufficient to establish probable cause on the basis of the

facts alleged in the affidavits. We feel it proper to read

both the orders themselves and the minimization language

of the supporting affidavits in a ‘common sense and

realistic fashion’ .. .”

It is respectfully submitted that “agreements” by the officials

as to what they will do, is not a substitute -for a legislative

direction that a warrant before it can be executed and indeed

even granted by a judge, must contain the directive to minimize.

It is not the authorities who seek the warrant that decide the ex

parte application but a judge.

Similarly, a deficient state warrant was validated in U.S. v.

Rizzo, 492 F.2d 443 (Cir.-2d 1974), cited in the opinion below at

page 3309. On page 446 the Court below stated:

*A related claim is that the warrants were invalid on their

face because it did not explicitly call for minimization.

Such a failure, however, we have stated in U.S. v.

ore

rot.

PE ne a Te Ee OO AE Ra RTS nt RE

Manfredi, 488 F.2d 588 ... at 590, 597-599, is not

necessarily fatal . . . Here each affidavit stated that the

interception would be ‘executed in such a manner as to

minimize the possibility of intercepting privileged or non-

pertinent conversations.” Moreover, the warrants

themselves contain language that nothing shall be con-

strued as authorizing overhearing or interception of any

communication ‘which appears privileged or unrelated to

the aforementioned crimes.’ In light of such language the

warrant fulfills the requirements of New York law... .’’ .

Thus, the holding of Manfredi, supports a holding in a later

case involving a New York State warrant that the ‘‘agreement”’

on the part of the police or the District Attorney to minimize,

satisfies the requirement that the order itself contain a direction

to the authorities to minimize.

The order under consideration in this application found on

pages 16-19-34 of the appendix submitted in the Court below. It

recites that there was probable cause that the communications

concerning the particular crime would be obtained by the in-

terception of messages. It also stated that there was probable

cause to believe that the subject instruments would be used in

connection with the commission of drug offenses. Then the

warrant or order ordered that the authorities could intercept and

described the methods of interception. In so doing the state -

court stated that the authorities were to so eavesdrop over the

telephone instrument in regard to the commission of the narcotic

offenses.

It is respectfully submitted that the language of the order

under consideration nowhere directed the authorities to

minimize. The order was merely a recital of what the Court

RD Rh ES Sh OUT APN Chia ha py ue

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found to be probable cause in regard to the telephone in-

struments that were allegedly used in the commission of narcotic

offenses. There wasn’t even a direction to the authorities that

privilege communications were not to be intercepted. Nor was

there any claim on the part of the government that there was

“any agreement” on the part of the authorities that they would

in fact minimize.

The Court below relied on a solitary New York holding in-

volving this issue and reported in People v. Solomon, 74 Misc. 2d

926, 346 N.Y.S. 2d 938 (Supreme Court, Kings County, 1973).

The rationale of the state court in that case was primarily based

on the holdings in U.S. v. Tortorello, supra, 480 F.2d 764 and

U.S. v. Poeta, 45S F.2d 117 (Cir. 2d, 1972;.

As a matter of fact, the holding of the Court below adopted

the reasoning in People v. Solomon. Consequently, People v.

Solomon absorbed the holdings of the 2nd Circuit, and the 2nd

Circuit absorbed the holdings of the State court.

Apparently, adopting the reasoning in People v. Solomon, the

Court below held that the requirement as to the direction to.

minimize in the warrant was at most “‘talismanic’’. However, in

view of the fact that Congress specifically stated that suppression

would follow where the order was insufficient on its face can

hardly be called a platitude or a ‘‘talisman”.

Congress had the full jurisdiction to legislate in this field.

Despite the fact that the exclusionary rule may have been

fashioned by the Courts rather than by the legislature, never-

theless Congress also had the full power to legislate in this field,

and Congress did by enacting a simply worded rule for excluding

evidence illegally procured from wire tapping and electronic

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217

surveillance. It is submitted, this was fully recognized in U.S. v.

Giordano, supra. See also Weiss v. U.S.. 308 U.S. 321, 1939.

The holding in that case was that Section 605 as it then

existed, of the Federal Communications Act, was so inclusive

and complete that the ban on illegal wire tapping extended not

only to telephone calls that were interstate but also intrastate.

Consequently, the issue is not what the Courts have done in

regard to technical oversights in procuring conventional search

warrants, but what Congress has decided.

The holding in Solomon in regard to the requirement of the

minimization direction, does not seem to have been followed in

other cases in New York. However, that same case later reported

in 7S Misc. 2d 847, 348. N.Y.S. 2d, 673 dealt with the question as

to whether the authorities in executing the warrant minimized

the interception. The defendants contended that the authorities

failed to minimize certain conversations and that therefore all

the products of the eavesdropping should be suppressed. In-

stead, the Court in Solomon held to the contrary stating on page

648 of 348 N.Y.S. 2d that:

“It is the conclusion of this Court that the failure to

minimize the interception of the telephonic com-

munications does not require total suppression of all

intercepted conversations. All intercepted conversations

which are material and relevant to the approximately 130

which have been the subject of this hearing are admissible.

Those conversations which are irrelevant and not-

pertinent are suppressed. This ruling shall apply to all

intercepted conversations to be offered into evidence on

the trial.”

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Thus it can be seen that failure to include the minimization

provision is excusable. Then when the authorities actually do not

minimize the court performs surgery and segregates the ex-

cessive eavesdropping from the original scope of the in-

vestigation. One defect leads to another.

As was stated in Boyd v. U.S., 116 U.S. 616, 635:

“It may be that it is the obnoxious thing in its mildest and

least repulsive form; but illegitimate and unconstitutional

practices get their first footing in that way, namely, by

silent approaches and slight deviations from legal modes

of procedure.”

The twin holdings in Solomon, lead to consideration of 18

U.S.C. 2518(10)(a) which provide:

(iii) the interception was not made in conformity with the

order of authorization or approval.”

Thus Congress clearly provided for suppression in regard to

the execution of the warrant. But according to the cases cited by

the Court below, (ii) of that Section is held to be talismanic. The

State Court then relaxes the strict requirements of (iii) of that

Section.

Nor is U.S. v. Ventresca, 380 U.S. 102 (1965) cited by the

Court below in point. That case dealt with discrepant affidavits

the authorities submitted to procure the conventional search

warrant. It was held that the affidavits were sufficient despite

certain errors contained therein. The Court explained that due

to the necessities entailed in procuring search warrants affidavits

would be considered in a realistic and non-technical manner

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thereby encouraging the authorities to procure search warrants.

However, in this case, it cannot be said that a judge’s order was

prepared hastily and must be considered in a “‘common-sense”’

fashion. In a ‘“‘common-sense” manner and viewed realistically,

Congress and the New York State legislation drew the order and

warrant leaving the issue of probable cause and the other

requirements for the objective consideration by a judge. But it is

athe warrant issuing judge who grants relief and the relief

authorizing electronic surveillance, must be confined to the

attendant conditions in the case which include an express

direction to minimize. See also 41 U.S.C. 605 providing that

there be no wire tapping except as authorized by Congress. The

order, because it omitted this vital direction, was void and the

authorities actually wire tapped without an order.

Additionally, courts which are more proximate to the

numerous problems arising from searches and seizures have

become somewhat sensitive to discrepancies in the affidavits

underlying the warrants. See U.S. v. Thomas, 489 F.2d 664

(Cir.-Sth, 1973), where it was held that if the police officer

makes a material misrepresentation in an affidavit submitted to

procure a search warrant, or the misrepresentation is in-

tentional, the warrant will be deemed void. See page 668 of that

opinion. In other words, it was held that the purposes of the

exclusionary rule, have to be referred to in determining

misrepresentations and factual deficiencies in applications for

search ‘warrants.

More so, it is urged, where the legislature has enacted a rule of

suppression as in the case of electronic surveillance.

The Court below buttressed its holding that discrepancies will

not vitiate a successful search and seizure relied on the holding

’

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‘

of this Court in Smith v. United States, 360 U.S. 1, (1959). That

- case dealt with the propriety of prosecuting a serious crime by

way of a prosecutor’s information rather than an indictment

which the defendants in that case waived. In holding that the

waiver was ineffectual, this Court stated on page 9 that while 1 |

convictions are not' to be reversed because of “technical :

deficiencies which did not prejudice the accused’’, nevertheless

1 held that:

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*. . . but the substantial safeguards to those charged with

serious crimes cannot be eradicated under the guise of

technical departures from the rules. .. .”

In this case the seriousness of the charges and the coun-

7 sequential terms of imprisonment, certainly demand strict

compliance by the prosecution with the legislative enactment in

question. '

; As held in Sgro v. United states, 287 U.S. 206, 210, search

warrants are “drastic’’. ;

Nor is the holding of the New York State Court of Appeals,

People v. Glen, 20 N.Y. 2d 252, Cert. Denied sub nom Baker v. i

New York, 409 U.S. 849 (1972) supporting authority for the

decision below, see pages 3308-3309 of the slip opinion, ap-

pendix A herein. That case dealt with the propriety of a state |

court issuing the search warrant to seize property that may not

have been in existence or at the locale subject to the warrant at

the time of the issuance of the search warrant. The Court of :

Appeals’ of the State of New York held that the warrant could

‘only be executed within a ten-day limitation; that the property to

‘ be seized was seized within the limitations.

—

———E——————

It was further held in that opinion that technical defects of a

warrant does not undo a search. However, the full holding in

that respect found on pages 261 and 262 of the opinion states:

“A subordinate issue merely alluded to by the parties is

whether the possibility that the warrants by their terms

could have been executed prematurely ... renders the

warrants invalid on their face. Certainly, the better

practice would have been for the issuing judge to require

that the search have been reasonably contemporaneous

with the delivery of the package of suitcase. Nevertheless,

the fact that the warrant would on its face authorize an

improper search does not undo it for all purposes. The

defect is a technical one and may be disregarded since the

warrants were executed at the only time practicable under

the facts as set forth in the affidavits, and within the ten

days provided by statute and directed by the warrant on its

face. Thus, that only a technical irregularity is involved is

suggested by cases holding that the fact that a warrant

improperly authorized a night time search did not make

illegal a day time search (People v. Varney, 32 A.D. 2d

i, ed's

However, the search in that case was a limited one and the

warrant served a statutory purpose of being executed within a

ten day limitation provided by the legislature for such execution.

In this case, the failure to direct minimization related to an

order or warrant that allowed eavesdropping unannounced,

secret and pervasive, for a period in excess of ten days.

Noteworthy, is the fact that the subject telephonic instruments

were located in a domicile or a residence. —

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Again People v. Varney. 32 A.D. 2d 181, 301 N.Y.S. 2d 330

(Supreme Court. App. Div. 2nd Dept. 1969), cited in the slip

opinion of the Court below at page 339 it cannot be support for

the position of the Court below. In that case a search warrant

granted by a New York State Court, was deemed to be in

violation of the State statutes requiring probable cause justifying

a night time search. The search pursuant to the warrant was

actually conducted in the day time. The Court held that the

warrant may have been technically deficient but that the search

itself was valid.

Again, that case dealt with a search warrant that could only be

executed once, and was not as pervasive in its execution as wire

tapping is. Furthermore, the warrant was facially correct.

However, it is submitted, that while these cases may be looked

at atomistically, and thereby having limited holdings, the

aggregate of these cases constitute inroads into the fundamental

right of privacy, and the warrant requirements of the 4th

Amendment to the Federal Constitution. Thus, the reasoning

technically deficient, but the search is thereby valid. Then that

case serves as a holding for another case validating a search and

seizure, where there are other “technical” deficiencies.

It is respectfully submitted that this Court’s recent holding in

Giordano invalidates the approach to searches and seizures that

the Court below adopted.

Electronic surveillance deals with utterances, talk, speech and

communication. The requirement that a warrant direct

minimization, would seem to be in keeping with the 4th

Amendment demand that if privacy is to be punctured, the

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intrusion be limited. But since communication is involved, the

ist Amendment's freedom relating to speech also is a value to be

considered. The congressional direction as to minimization is a

furtherance of a Ist Amendment interest. Directives and

regulations are necessary when speech is involved. Whatever

government interest lies in impinging on speech, there must be

narrow regulations. Consequently, these regulations are not

mere talismans or platitudes. See Procunier etc., v. Martinez.

U.S. Supreme Court, April 29, 1974, No. 72-1465, 42 U.S. Law

Week, 4206, 4611, 4612.

See also VIII Suffolk University Law Review 60 (1973)

“Notes Minimization: In Search of Standards:”

In pages 78 and 79 thereof, in considering the rule as to

suppression where this is a facially deficient wire tap order, it is

stated in part as follows:

“. . . Such a defect could be, for example, an insufficient

degree of particularity. As previously noted, this would

preclude effective ‘minimization’ by the monitoring office

because of the lack of effective guidelines as to what may

be lawfully intercepted. Such a surveillance would con-

stitute, in effect a ‘general search’ and therefore, being

unlawful abonitio would require suppression of all in-

tcrceptions made pursuant to the order.”

In U.S. v. Kahn, U.S. . 39 L. Ed. 2d 225 (1974), the

opinion of the Court held that anyone's voice over the tapped

telephone is subject to seizure and interception. That the order

or warrant need not name the subjects. Since this is not the law,

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it is suggested that the order for authorization be precise and be

promulgated in exact conformity to the enabling legislation of

Congress and of this case the State legislature.

B. The Court below should have directed that an evidentiary

hearing be had in the trial court to determine whether the

authorities minimized properly:

The Trial Court made the decision that the authorities

minimize. But the finding was made upon a consideration of the

affidavits submitted by the prosecution. There was no eviden-

tiary hearing conducted.

Initially, petitioners’ counsel made an application to suppress

the evidence by the serving and filing of a Notice of Motion and

an affidavit underlying the Notice of Motion (302-336). Three

opposing affidavits were submitted by the government. They

were verified June 11, 1973, which was the day before the motion

came on to be heard, and were served the day the motion came

on to be heard (366-368).

The first affidavit was executed by the United States Attorney

Guy L. Heineman and was verified June 11, 1973. That affidavit

was to the effect that he was concerned with this investigation

(340, 341). One Martin H. Hershey, an Assistant District At-

torney of Kings County “alleged in his affidavit that before the

granting of the first wire ‘tap warrant and thereafter, he

cautioned the police to minimize. all telephone conversations not

pertinent to the crime under investigation (342, 343). Hershey

further alleged that a police sergeant named Olesk told him that

he explained the procedure of minimization to “all police of-

ficers concerned” Hershey “periodically” checked with Olesk

and was told by him that minimization was carried out (343).

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Hershey concluded that the reasons he gave the directions as to

the minimization was that he was aware that the law required it

(343).

A U.S. agent, one Alexander Dovetko, alleged in his affidavit

that he was cooperating with the state authorities who were

investigating this case (344, 34S). Prior to applying for the first

wire tap order or warrant, the U.S. attorney called this agent's

attention to minimization (345). The agent visited the ‘plant’

daily inclading weekends and saw the authorities actually

minimize the surveillance (345, 346).

Dovetko further averred that he reviewed the logs and

summarized them as follows: 496 calls were received; of these

120 were completed calls. Then 237 calls were listened to

completely. 93 were listened to “initially’’ and then turned off.

The logs indicated frequent occasions when non-relevant

conversations were not “intercepted’’. Thus, calls of Cirillo’s

children were not monitored unless they were receiving messages

for Cirillo (346).

Continuing further in his affidavit, Dovetko alleged that two

agents reviewed the logs as to Cirillo and calls to a co-defendant

named Sorrentino. Their analysis showed that 1,496 calls were

made over Cirillo’s telephone. 297 were incomplete leaving a

balance of 1,199 conversations. Then 688 were listened to

completely, the agents “believing” that they were pertinent; 511

calls initially were listened to to determine whether they were

relevant or not. In some instances, some of these were re-listened

to to determine whether the conversations “continued to be non-

pertinent” (347).

In regard to a co-defendant Sorrentino, 2,180 telephone calls

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were made. Of these 599 were incomplete leaving a balance of

1.505 calls; of these 838 were listened to completely “‘because

they were believed to be pertinent at the time” (347). 747 were

initially listened to but the listening was discontinued (348).

18 U.S.C. 2518(A)(8) provides in part that:

“. .. The recording of the contents of any wire or oral

communication under this subsection shall be done in

such a way as it will protect the recording from editing or

other alterations. Immediately upon the expiration of the

period of the order of extensions thereof, such recordings

shall be made available to the judge issuing such order

and sealed under his direction. Custody of the recordings

shall be wherever the judge orders . . .”

In this case, petitioners made a timely claim that this direction

was not adhered to but the Court below found it was not

mandatory (351, 352). Therefore the execution of these warrants

for the period of time involved was in effect unsupervised by any

judicial authority.

The aforementioned affidavits submitted in opposition claim

minimization was actually conducted. But it is submitted these

are the conclusions of two prosecutors and the federal agent.

While a quantitative breakdown was attempted in the agent’s

affidavit as aforesaid, at pages 346-347 of the Appendix sub-

mitted in the Court below, these allegations are not clear and the

explanation of minimization is ambiguous. Thus the agent

alleged that:

“The logs themselves indicate frequent instances where

non-pertinent conversations were not intercepted...”

(346)

Just what percentage of these calls were deemed by the agent

(there was no judicial finding) to be frequent was not stated by

the agent. Here again, there is no judicial supervision and in-

stead the privacy of persons subjected to the interception is left

to a police officer.

Thus, it was shown above and it is found on pages 347 of the

appendix filed in the Court below, that the agent claimed that of

1199 calls 688 were intercepted but that such interception may

not have been within the scope of the statute. Petitioners can't

say within the scope of the warrant because there was no

direction to minimize. The agent did not state that these calls

were within the permissible scope because the agent alleged that

of the 688 calls that were listened to completely the agents and

officers *‘having believed at the time that the conversations were

pertinent”.

However the time of the interception was not the time of the

hearing. What was believed at the time of the hearing was not

stated in the agent's affidavit. As a matter of fact the agent's

statement is an admission which supports an inference and a

very strong inference that the agents may have been mistaken

when they initially listened to the subject conversations in regard

to whether they were relevant or not.

There is a further admission by the agents that in some in-

stances they relistened to conversations periodically to determine

that the conversations continued to be non-pertinent.

Obviously petitioners or their counsel were in no position to

rebut the conclusions alleged in the opposing affidavits sub-

mitted by two prosecutors and a federal agent. An evidentary

and adversary hearing would have enabled this Court to have the

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complete record of just how the minimization was conducted.

Obviously petitioners can not make a factual showing because of

the secrecy of the investigation and hence they could not raise an

issue purely by affidavit. Even in a civil action where monetary

damages are at stake in distinction to a criminal action where

liberty is at stake, a motion for summary judgment need not be

granted where the opposing affidavit can not allege facts

showing that there is a triable issue; see Rule 56(f) of the Rules of

Civil Procedure for the District Courts.

Furthermore, it would seem that the warrant stands or falls as

it exists and can not be corrected by state officials submitting

affidavits executed subsequent to the issuance of the warrant

and after it was executed. See Whitely v. Warden of Wyoming

Penitentary, 401 U.S. 560 (1971) footnote 8 at page 56S. As was

stated in Johnson v. United States, 333 U.S. 10, (1948), at page

14:

“. .. It’s protection consists in requiring that these in-

ferences be drawn by a neutral and detached magistrate

instead of being judged by the officer engaged in the often

competitive enteprise of ferreting out crime...”

As was stated in U.S. v. Huss, 482 F. 2d 38, (Cir.-2d, 1973), at

page SO:

“. . . but wecan not rely solely on the government’s ‘good

faith’ representation on such a critically contested issue.

Indeed, the government’s good faith did not present a

legal wire tapping here, nor did the government’s good

faith prevent it from searching illegally, or from the rating

and account of the circumstances of that search which the

court found to be incredible . . .”

“. .. Speculation at this point only weights against the

government's plea that its claim be taken at face value.

This ‘trust us to do the right thing’ argument was roundly

rejected by the Supreme Court in U.S. v. U.S. Court,

supra....

“The teaching of the Supreme Court in Alderman v.

United States, can not be avoided. We are instructed that

when illegal electronic surveillance has come to light it is

the adversary system, not representations by the govern-

ment and not in camera decisions by the Court, which

must be relied upon to determine whether overheard

matter is ‘relevant’ to the taint hearing. Here, the logs

represent a monitor’s summary of the intercepted con-

versation. .. .”

It was thus noted by that Court especially in footnote 8, that

Alderman v. United States, 394 U.S. 16S required an adversary

proceeding or a full evidentary hearing so that a Court can .

determine factual issues especially where the factual issues are

complex.

It is respectfully submitted furthermore, .that the logs fur-

nished to petitioners’ counsel would serve as a basis for the cross

examination of the government agent and other authorities if an

adversary hearing were afforded the petitioners. That would be

chief sanction of the furnishing. This was frustrated because the

Court had no evidentiary hearing.

In U.S. Bynum, 47S F. 2d 832, (Cir.-2d, 1973), counsel for the

defendants there made no application for an evidentary hearing

to test whether the authorities minimized the execution of wire

tap orders. Nevertheless the Court below remanded the matter

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for an evidentary hearing. There was an indication in that

opinion, therefore, that counsel for the defendants there did less

than counsel for the petitioners here. Yet, the Court below

decided this issue adversely to the petitioners.

Furthermore, it is very difficult to see just why if the

authorities knew of the mandatory direction that the warrant or

order contained a minimization provision, the authorities did

not see to it that the order under review contained such

provision. Even if the order did not contain such provision,

originally, certainly it would have been of no moment for the

authorities to call the attention of the Court that granted such

order and have the direction supplied.

C. Wire tapping is unconstitutional and violative of the

fundamental right of privacy under the 4th, Sth, 9th and 14th

Amendments to the Federal Constitution either as applied to the

facts of this case, or on the face of such statutes:

As Mr. Justice Douglas stated in his dissent, found in Hudson

v. United States, 02 U.S. 96S:

“I dissent from the doctrine that an individual begins to

lose his constitutional rights the minute he answers the

telephone.”

As Mr. Justice Douglas further said in his concurring opinion

in Gelbard v. U.S., 408 U.S. 41, (1972) at page 62:

“I would hold that Title III of the Omnibus Crime Control

and Safe Streets Act of 1968 offends the Fourth Amend-

ment. as does all wire tapping and bugging, for reasons

which I have often expressed elsewhere . . .””

Furthermore, in the opinion of Mr. Justice Brennan in that

case, at page 45 footnote 5S, it was specifically noted that the

petitioners there did not raise the constitutionality of the statute.

In Kahn v. U.S.,— U.S. —, (1974), 39 L. Ed., 2d 225,

the prevailing opinion held that anyones voice over the tapped

telephone is subject of interception. But that opinion specifically

noted that the constitutionality of the wire tapping statutes was

not presented to the Court, at page 234.

However, it was also noted on page 234 that:

“, . . to be sure, Congress was concerned with protecting

individual privacy when it enacted this statute. But it is

also clear that Congress intended to authorize electronic

surveillance as a crime against the operations of organized

crime. There is, of course, some tension between these two

stated Congressional objectives . . .””

The Court below in its holdings found in U.S. v. Tortorello,

480 F. 2d 765, (Cir.-2d, 1973), recognized at pages 774-775 that

there was possible tension between wire tapping as practiced

under the statutes, and this Court’s holding in Osborne v.

United States, 385 U.S. 323.

While it must be recognized that the wire tap legislation under

consideration, was a legislative (both federal and state) response

to the demands this Court articulated in Berger v. New York,

388 U.S. 41, (1967); Katz v. United States. 389 U.S. 347 (1967);

Osborne v. United States, 385 U.S. 323, (1966). it is respectfully

submitted that in practice these demands cannot be met. This

perhaps is in the nature of this type of surveillance and in-

vestigation. It is intangible, it does not require prior notice of

Raia a tare

purpose and authority, it permits the seizure of words which are

symbolic of ideas, it may have a “chilling” effect on people who

are not criminals, but nevertheless desire to have the privacy of

their conversation and communication of ideas or anything else

people may want to communicate, untrammeled.

Thus, while a search warrant is primarily directed to the

search and seizure of tangible property, search warrants also are -

limited to one execution within a given period, usually ten days. |

Wire tap warrants can extend for thirty day periods, twenty- -

four hours a day and can apply to all who use the telephone. See -

U.S. v. Kahn, supra. Moreover, what is usually spoken over the

telephone is subject to a “interpretation” by the police who claim

that the words have a secondary meaning relating to the crime

under investigation.

That wire tapping reaches the right of privacy in regard to free

expression and even assembly, see U.S. v. White, 401 U.S. 745,

(1971), dissenting opinion of Mr. Justice Douglas, at page 736,

762, 763, 764-766.

This Court held that the 9th Amendment to the Federal

Constitution is grounded on privacy, Griswold v. Connecticut.

381 U.S. 479, (1965), page 484. See also concurring opinion of

Mr. Justice Goldberg. with whom the Chief Justice and Mr.

Justice Brennan joined, at page 488, 489.

See also Roe v. Wade, 410 U.S. 113, (153). While that case

considered the due process clause of the 14th Amenement to the

Federal Constitution as involving the right of privacy, it is

submitted that such right can either be found in the due process

provisions of the Bill of Rights or in the 9th Amendment to the

Federal Constitution.

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It is respectfully submitted that the 9th Amendment to the

Federal Constitution is not just a catch-all provision, but has a

definite meaning fixed in history.

“Under the Ninth Amendment What Rights Are the

‘Others Retained By The people?’ 29 Federal Bar Journal,

Summer 1970, No. 3, pages 219, et seq.

It is respectfully submitted that the rights retained by the

People as articulated in the 9h Amendment is the right of

privacy and the right to be free from eavesdropping. See “Under

the Ninth Amendment, . . . , 14 South Dakota Law Review, 80

et seq., (Winter 1969).” On page 86 of that article it is noted that

the 9h Amendment has been argued as being relevant to wire

tapping or electronic surveillance. On pages 89-90, it is noted

that the 9h Amendment envisaged certain basic rights whether

the same are enumerated or otherwise. It is submitted these

include the basic rights at common law.

At common law, eavesdropping was considered a nuisance. It

was actionable. As was stated in In Re Lanza, 6 Misc. 2d 411,

163 N.Y.S. 2d, 576, at pages 579-S80 where it was stated:

“If we are to enjoy the benefits of a free society, we must

have guaranteed to us the right of freedom of thought and

speech. Freedom of speech, of necessity includes the right

to be free from unwarranted secret listening of in-

terference by others. The privacy of all free citizens is a

fundamental and basic right. Without resorting to an-

tiquity, we find in the Magna Carta a guarantee of security

to all the men in that famous clause (39) that ‘no freeman

shall be taken, or imprisoned or disseised, or outlawed or

banished, or anyways molested, nor will we pass upon

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him, nor will we send upon him, unless the lawful

judgment of his peers, or by the law of the land.’

Blackstone in his Commentarys . . . defining the offense

of eavesdropping, says: ‘eaves-droppers, or such as listen

under walls or windows or the eaves of a house to harken

after discourse, and thereupon to frame slanderous and

mischievous tales, are a common nuisance.’ Corpus Juris

Secundum says that in English Criminal Law

- eavesdropping was ‘the offense of listening in on the walls

or windows, or the eaves of a house, to harken after

discourse, and thereupon to frame slanderous and

mischievous tales.’ . . . Bishop says that eavesdropping

‘consists of a nuisance of hanging about the dwelling

house of another, hearing tattle, and : cae it, to the

disturbance of the neighborhood. .

Velatee XIV, Words and Phrases, Eavesdropping. p. 111,

defines an eavesdropper as ‘one who is secretly a lisi*ner to

conversations between others, and would include a person

who merely overheard communications or conversiutions

between a husband and wife’ . . . Eavesdropping was an

indictable offense in common ‘law . . .”

See also In Re Lanza, 4 A.D. 2d 252, 164 N.Y.S. 2d 534.

CONCLUSION:

It is respectfully submitted that the petition for the writ of

certiorari be granted. ,

Respectfully submitted,

; HAROLD BORG

Attorney for Alphonse Cirillo

A Member of the Bar of the

Supreme Court of the

United States

ARNOLD E. WALLACH

Attorney for Vincent Murphy

A Member of the Bar of the

Supreme Court of the

United States

Dated: New York, New York

June 4, 1974

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