Appendix — Bianco v. United States

on Supreme Court, U.¢

Cy FILED

OS12SOrEB 4 1994

No. 94=- OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

NICHOLAS L. BIANCO, LOUIS R. FAILLA,

GAETANO J. MILANO and FRANK A. PUGLIANO,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX H

Wendy Hanna Sibbison

Counsel of Record

26 Beech Street

Greenfield, MA 01301

(413) 772-0329

Attorney for Gaetano J. Milano

Jeremiah Donovan

123 Elm Street

Old Saybrook, CT 06475

(203) 388-3750

Attorney for Louis R. Failla

Additional counsel on

inside cover.

February, 1994

Vincent Bongiorni

101 State Street

Springfield, MA 01103

(413) 732-0222

Attorney for Frank A. Pugliano

William A. Dimitri

Dimitri & Dimitri

733 Douglas Avenue

Providence, RI 02908

(401) 273-5600

Attorney for Nicholas L. Bianco

APPENDIX H

UNITED STATES OF AMERICA

Vv.

VINCENT M. FERRARA, ET Al.

Crim. No. 89-289WF

United States District Court

D. Massachusetts

771 F. Supp. 1266

April 15, 1991

Corrected June 27, 1991

M RAND D_ ORDER

WOLF, District Judge.

I. Summary

The seven defendants’ in this case

are charged with being members of the

Patriarca Family of La Cosa Nostra ("LCN"

or "Mafia"). It is alleged that the

‘The defendants are Raymond J.

Patriarca, the alleged "Boss" of the

Family; Joseph A. Russo, the alleged

"Consigliere" or "Counselor" and acting

"Underboss;" Vincent Ferrara and Robert

Carrozza, alleged "Capo Regimes" or

"Captains;" Carmen Tortora, an alleged

"Soldier;" and Dennis Lepore and Pasquale

Barone, alleged "Associates" of members

of the Patriarca family.

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Patriarca Family is a criminal

organization as defined in the Racketeer

Influenced and Corrupt Organization

("RICO") statute, 18 U.S.C. § 1961 et

seq. (1988). The Superceding Indictment

charges that the Patriarca Family is a

highly secret enterprise whose illegal

activities have included specified

murders, drug trafficking, extortion,

obstruction of justice, and gambling,

among other things.

Significant evidence of the existence

of the illegal enterprise alleged in this

case was obtained by the government when

-- apparently for the first time anywhere

-- it electronically intercepted and

recorded a meeting on October 29, 1989,

at 34 Guild Street, Medford,

Massachusetts in which new members of the

LCN were inducted. As part of the

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ceremony, the new members: swore their

life-long, paramount loyalty to the LCN

and acknowledged that only death would

end their membership; promised not to

divulge the existence or secrets of the

LCN; and undertook to kill informants,

including their blood relatives, if

instructed to do so.

The electronic surveillance at 34

Guild Street was conducted pursuant to a

warrant issued on the evening of October

27, 1989, (the "Order" or the "Warrant"),

by Judge David Nelson of the United

States District Court for the District of

Massachusetts. See Appendix 1 hereto. The

Warrant was issued on the basis of an

application filed by then Special

Attorney Diane Kottmyer (the

"Application") and a supporting affidavit

of Special Agent Walter J. Steffens, Jr.

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(the "Steffens Aff.") of the Federal

Bureau of Investigation ("FBI"). The

Order authorized roving electronic

surveillance to intercept certain

criminal communications involving Joseph

Russo, Vincent Ferrara, or Robert

Carrozza.

The Warrant was issued pursuant to 18

U.S.C. § 2518 (11)(a), a relatively new

provision of the federal statute

authorizing the interception of

communications. See The Wire and

Electronic Communications Interception

and Interception of Oral Communications

Act, 18 U.S.C. § 2510 et seq. (1988)

("Title III").* Title III was enacted

in 1968, after the Supreme Court,

*The text of § 2518(11) and the

provisions of Title III which it

modifies, §§ (1)(b)(ii) and (3)(d), is

set forth in Appendix 2 hereto.

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reversing its prior precedent, explicitly

held that the protections of the Fourth

Amendment applied to the interception of

wire and oral communications. See section

III.3 intre., The statute was intended to

codify the requirements of the Fourth

Amendment as it was then understood to

apply to the interception of

communications, to supplement the Fourth

Amendment’s protections with solely

statutory safeguards and procedures, and

to facilitate the interception of

criminal conversations in appropriate

investigations -- particularly including

investigations of organized crime.

The Fourth Amendment requires that

searches and seizures be reasonable and

establishes certain requirements for the

issuance of warrants. Among these is the

requirement that any warrant

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"particularly describe the place to be

searched, and the persons or things to be

seized." U.S. Const. amend. IV. As

originally enacted, Title III implemented

the particularity clauses of the Fourth

Amendment by requiring: (1) that each

application concerning electronic

Surveillance include "a particular

description of . . . the place where the

communication is to be intercepted," 18

U.S.C. § 2518(1)(b)(ii), and (2) that the

judge find that "the place where,

communications are to be intercepted [is]

being used, or [is] about to be used," in

the commission of a specified offense, §

2518(3)(d).

In enacting Title III, Congress

expressed the belief that electronic

surveillance was indispensable to

investigating and prosecuting organized

A135

crime. Subsequently, many cases in

Massachusetts and elsewhere showed this

conviction to be correct. As the ability

of the government to intercept criminal

conversations became manifest, however,

sophisticated criminals began structuring

their communications to frustrate efforts

to intercept them.

In recognition of this, Title III was

amended in 1986 to add "roving intercept"

and "roving wiretap" provisions, 18

U.S.C. § 2518(11) (1988). With regard to

the roving intercept provision at issue

in the instant case, subsection 11

provides that the usual particularity

requirements of Title III, §

2518(1)(b)(ii) and (3)(d), do not apply

if a judge finds such specification is

not practical, based upon an application

by the government containing:

A136

a full and complete statement as to

why such specification is not

practical and identifying the person

committing the offense and whose

communications are to be

intercepted.

§ 2518 (11)(a)(ii).

In essence, the roving intercept

provision replaces the usual practice

that the place to be searched be

identified in a warrant by an address

with a description of that place as the

location at which an identified person is

engaging in identified criminal

conversation. Thus, a roving intercept

order gives executing officers less

specific direction, and more discretion,

concerning the place to be searched than

a conventional warrant. Section

2518(11)(a) reflects the contemporary

view of Congress and the President that

this increased discretion is

constitutionally permissible and

A137

appropriate when it is impractical for a

warrant to define the place to be

searched in conventional terms,

particularly if that impracticality is

caused by the deliberate efforts of

suspects to frustrate surveillance.

At the outset of this case the

defendants moved to suppress the evidence

intercepted at 34 Guild Street on the

ground that the roving intercept

provision of Title III violates the

particularity clause of the Fourth

Amendment and is, therefore,

unconstitutional. The government opposed

this motion, which presents issues which

have not been decided previously by any

court.

The court began oral argument on

defendants’ motion on February 22, 1991.

At that time neither the defendant nor

A138

the court were aware that the government

had, prior to obtaining the Order in this

case, developed information concerning 34

Guild Street as the possible site of an

imminent Mafia induction ceremony, but

did not include that information in the

Application or Steffens’ Affidavit

furnished to Judge Nelson. In response to

an invitation by the court to clarify

what, if anything, it knew about 34 Guild

Street before issuance of the Warrant,

the government filed several affidavits.

Those affidavits indicated that on

October 27, 1989, the government’s

investigation developed several pieces of

information indicating that 34 Guild

Street would be used two days later for a

Mafia induction ceremony. Thus, by that

afternoon, there was evidence sufficient

to provide probable cause to believe it

A139

would soon be possible and proper to

intercept conversations at 34 Guild

Street. At the same time the government

also had formidable reasons to doubt that

they had identified the true location of

an imminent Mafia induction ceremony and

considerable evidence that the proposed

targets of the proposed roving Order were

still attempting to thwart surveillance.

Disclosure of the foregoing facts

concerning 34 Guild Street caused

defendants to supplement their motion to

suppress to claim additional statutory as

well as constitutional grounds for

exclusion of the evidence at issue. Oral

arguments on the continually emerging

legal issues were held on February 22,

1991, February 26, 1991, February 27,

1991, March 6, 1991, March 14, 1991 and

March 25, 1991. On March 25, 1991,

A140

, ; . , °

defense counsel were permitted to

interrogate Kottmyer on the reasons why

she did not on October 27, 1989 revise or

Supplement the government’s submission to

provide Judge Nelson with the information

the FBI had recently developed regarding

34 Guild Street.

Upon consideration of the evidence,

the parties’ voluminous memoranda, and

analysis of the applicable law, the court

now concludes the motion to suppress must

be denied. In view of the complexity of

the issues presented, and of their

importance to all parties, the reasons

for this decision are explained in detail

in this Memorandum. Briefly summarized,

these reasons are as follows.

The constitutionality of the roving

intercept provisions now at issue must be

analyzed as they were implemented by the

A141

iil litt tbs by fc

Order issued by Judge Nelson. See section

III.1 infra.

In addition, the question whether §

2518(11), as applied in this case,

violates the Fourth Amendment requires

consideration of the origins of the

Amendment and its evolution, particularly

as it has been construed concerning

electronic surveillance. See section

III.2 infra. The Fourth Amendment was a

direct response to the general warrants

and writs of assistance which gave

colonial officials virtually boundless

discretion as to where they could search

and who or what they could seize. The

Amendment was originally enacted to

protect individuals and their tangible

property from unreasonable searches and

seizures.

A142

This protection against unreasonable

searches and seizures was afforded by the

operation of a series of related

provisions of the Fourth Amendment. These

provisions include the requirements that,

absent special circumstances, searches be

conducted pursuant to warrants issued by

neutral magistrates, based upon

demonstrated probable cause to believe

criminal activity is involved, and

specifically describing -- and thus

limiting -- the place(s) to be searched

and the property to be seized.

When it first confronted the issue in

1928, the Supreme Court did not construe

the Fourth Amendment to protect oral or

wire communications, which are intangible

and were not deemed to be within the

literal scope of the Amendment’s

protection of "persons, houses, papers

A143

and effects." In 1967, however, the

Supreme Court interpreted the Fourth

Amendment to protect conversations. Title

III was enacted in response to the

Supreme Court’s revised interpretation of

the Fourth Amendment as it applied to the

interception of communications.

The Supreme Court’s departure from the

traditional, literal application of the

Fourth Amendment concerning electronic

surveillance paralleled a more functional

interpretation of the Amendment in other

contexts as well. Thus, at least since

1967, the Supreme Court has increasingly

focused on the reasonableness of the

search or seizure at issue. At the same

time, the Court has relaxed literal

requirements of the Fourth Amendment --

or traditional interpretations of those

requirements -- when it has found a

A144

search or seizure to be reasonable and

has been convinced that it would be

impractical to interpret those

requirements more rigorously without

failing to recognize the legitimate needs

of law enforcement. In such cases, the

Court has indicated that the use of

unconventional forms of warrants are

permissible and appropriate when

departures from the usual terms of a

search warrant are, as a practical

matter, necessary to the viability of

prior judicial approval of a search and

Significant special circumstances justify

relaxation of the usual requirements.

Indeed, the Supreme Court has, in the

absence of traditional exigent

circumstances, recently approved searches

and seizures without warrants or probable

A145

ib UN AM i ti

cause on the basis that special needs

rendered such conduct reasonable.

This court is persuaded that viewed in

the current context of Fourth Amendment

jurisprudence, the roving intercept

provision of Title III, § 2518(11)(a), is

constitutional as applied in this case.

This conclusion is consistent with the

sole decision addressing the

constitutionality of the similar -- but

not identical -- roving wiretap provision

of Title III, § 2518(11)(b). See United

States v. Silberman, 732 F. Supp. 1057

(S.D.Cal. 1990).3

Two law review articles also

address the constitutionality of the

roving intercept and wiretap provisions

of Title III. See Fishman, Interception

of Communications in Exigent

Circumstances: The Fourth Amendment,

Federal Legislation, and the United

States Department of Justice, 22 Ga. L.

Rev. 1, 65 (1987); Goldsmith,

Eavesdropping Reform: The Legality of

(continued...)

A146

In addition, the judicially crafted

exclusionary rule relating to Fourth

Amendment violations applies to the

execution of the roving intercept Order

in this case. See sections III.6 and

IV.1, infra. This exclusionary rule now

includes an exception for objectively

reasonable reliance by a law enforcement

officer upon a statute, or upon a warrant

if it has been properly obtained. In

the instant case, the agents reasonably

relied on the validity of the roving

intercept provisions of Title III and the

Warrant issued pursuant to those

provisions. Therefore, if the manner in

which the Warrant was obtained does not

require suppression, the good faith

exception to the exclusionary rule would

3(...continued)

Roving Surveillance, 1987 U. Ill. L. Rev.

401.

A147

operate to defeat defendants’ motion to

suppress the evidence of the LCN

induction ceremony even if the roving

intercept provision of Title III were now

deemed unconstitutional.

With regard to suppression for

violations of Title III, there are now

several distinct exclusionary rules which

apply to different sections of the

statute. See Section IV.1 infra. The

provisions of Title III which were

intended to enact requirements of the

Fourth Amendment are subject to

judicially fashioned and evolving

constitutional exclusionary rules; these

rules include the standards enunciated by

the Supreme Court in Franks v. Delaware,

436 U.8.: 184, 357 L. Bd. Be 667, 98 BS. ct.

2674 (1978). The provisions of Title III

which are legislated supplements to the

A148

requirements of the Fourth Amendment are

subject to the more static exclusionary

_ provisions of the statute, §§ 2515 and

2518(10). A violation of an obligation

created solely by Title III does not

justify suppression if: (1) the section

of the statute at issue does not play a

"central" role in guarding against the

unwarranted use of wiretapping or

electronic surveillance; and (2) the

error was inadvertent, rather than part

of a deliberate effort to mislead the

court, or made in reckless disregard of

the government’s obligations.

In this case, the court concludes that

the government erred in not telling Judge

Nelson on October 27, 1989, of the

information it had developed regarding 34

Guild Street as the possible site for an

imminent Mafia induction ceremony. The

A149

failure to provide this information

constituted a violation of the

requirement of § 2518 (11)(a)(ii) that

the government provide a full and

complete statement of why it was, in the

government’s view, impractical to

identify a place to be bugged in

conventional terms. Subsection (11)

modifies other provisions of Title III

which are rooted in the particularity

Clause of the Fourth Amendment. Thus,

consistent with the relevant precedents

of the First Circuit in Title III cases

involving issues concerning applications

for a warrant, the judicially crafted

exclusionary rules -- particularly

including the standards of Franks -- must

be applied to determine whether

suppression is the proper remedy for the

A150

violation of subsection (11)(a)(ii) in

this case.

Franks directly addressed the

circumstances in which evidence should be

suppressed if it were alleged that the

government had presented false

information in an affidavit to persuade a

judge that there was probable cause for

the issuance of a warrant. In Franks, the

Court held that:

In the event that ... the

allegation of perjury or reckless

disregard is established by the

defendant by a preponderance of the

evidence, and, with the affidavit’s

false material set to one side, the

affidavit’s remaining content is

insufficient to establish probable

cause, the search warrant must be

voided and the fruits of the search

excluded to the same extent as if

probable cause was lacking on the

face of the affidavit.

Id. at 156. The Court, therefore,

established that when Franks applies a

defendant must satisfy two requirements

A151

NO eR he a

CTE Dn eet ne ee

to obtain suppression based upon possible

governmental misconduct in connection

with obtaining a warrant: first, that the

information at issue was known by the

government to be false or was presented

with reckless disregard for its truth;

and second, that the information was

essential to the issuance of the warrant.

These standards also apply when

information has been omitted from an

application or affidavit.

Suppression for the violation of §

2518(11)(a)(ii) is not proper in this

case because neither of the prongs of the

Franks test has been satisfied. As

described in detail in this Memorandun,

the court is convinced that Kottmyer

acted in complete good faith, without any

intention to mislead or obtain any

tactical advantage, when she failed to

A152

provide Judge Nelson with the

information obtained on October 27, 1989

concerning 34 Guild Street. See sections

II and IV.3.

In addition, Kottmyer’s error was not

made in reckless disregard for the truth

or for the government’s other obligations

to the court. As of October 27, 1989,

there were no cases construing § 2518

(11)(a)(ii). At that time, it was

objectively reasonable for Kottmyer to

believe, mistakenly, that the roving

intercept provision, § 2518 (11)(a)(ii),

which requires a showing of

impracticality, was synonymous with the

roving wiretap provision, § 2518

(11)(b)(ii), which followed it. The

roving wiretap provision requires only a

showing that a proposed target is seeking

to thwart surveillance. The information

A153

the government had just obtained

concerning the possible use of a

residence at 34 Guild Street for a Mafia

induction ceremony tended to strengthen a

showing that Russo, Carrozza and Ferrara,

who had no prior connection to that

address, were attempting to evade

surveillance. Given the ambiguity of the

law and the pace and pressure under which

decisions had to be made on the afternoon

of October 27, 1989, it was not reckless

for the government to make the error

which the court, after intense and

prolonged examination, now finds.

In addition, suppression is not

justified because if a reasonable judge

had been fully informed regarding 34

Guild Street, he or she would

nevertheless have authorized electronic

surveillance at that address, either by

A154

Signing the proposed Order authorizing

the roving interception in its original

form or by amending it to add express

authorization for 34 Guild Street, as

well as other, unspecified locations.

Accordingly, as the standards for

exclusion established by Franks have not

been satisfied, suppression is not a

proper remedy for the violation of § 2518

(11)(a)(ii) in this case.

Nor is suppression justified on the

basis of any of defendants’ other claims.

Contrary to defendants’ contention, §

2518(1)(c), the "necessity" provision of

Title III, did not require the government

to address in its Application electronic

Surveillance concerning Gaetano Milano

and Nicholas Bianco, who were under

investigation for some of the same crimes

as Russo, Ferrara and Carrozza. See

A155

LN AR aA LET Ln ill ets Seabee eC A AP eam

MERA pain PRI e

section IV.3 infra. More specifically, §

2518(1)(c) only requires disclosures

concerning the efficacy of non-Title III

investigative techniques. Moreover, as

this necessity provision is rooted in the

Fourth Amendment’s requirement of

reasonableness, a violation would justify

suppression only if the standards of

Franks were met. Once again, the court is

persuaded that even if § (1)(c) is deemed

to have been violated in this case,

neither of the requirements for

suppression under Franks has been

satisfied.

The defendants correctly contend that,

pursuant to § 2518 (1)(e), the

Application should have disclosed prior

applications for electronic surveillance

of all of the individuals named in the

Application, rather just for the three

individuals designated as "principals."

See section IV.5 infra. Subsection

(1)(e), however, is a statutory addition

to the requirements of the Fourth

Amendment. It has, in this district and

in other Circuits, been properly

characterized as a "non-central"

provision of Title III. Thus, where, as

here, a violation is inadvertent rather

than deliberate or in reckless disregard

of the government’s obligations,

Suppression is not justified.

Finally, even if the government could

have properly obtained a roving intercept

Order for Patriarca or his similarly

situated co-defendants, it was not

improper for the government to intercept

their communications with Russo, Ferrara

Or Carrozza pursuant to the Order

targeting those three individuals only.

A157

ee Sr ed

ee ee ee Ne a i a

See section IV.6 infra. Subsection

(11)(a)(ii) is intended to prevent

investigators from using a roving

intercept order as authority to intercept

communications if at least one of the

participants is not identified as a

target in the order; it is not intended

to preclude interception of incriminating

conversations involving a target

identified in a roving warrant and other

individuals.

Defendants’ remaining contentions

challenge the interception of

communications at 34 Guild Street on more

conventional [*1275] grounds, such as

minimization. These claims are not now

ripe for resolution. They will be

addressed in subsequent proceedings and

decisions.

A158

Accordingly, for the reasons amplified

in the following findings of fact and

analysis, defendants’ motion to suppress

the communications intercepted at 34

Guild Street must be denied.

II. The Facts

The following facts are derived

primarily from the Application and the

Steffens’ Affidavit submitted to obtain

the Warrant in this case, the four

affidavits submitted by the government in

opposing defendants’ request for

testimony in connection with the motion

to suppress, the March 25, 1991 testimony

of Kottmyer, which was subject to

searching cross examination, and the

court’s assessment of her credibility.

This case arises out of the Department

of Justice’s continuing investigations of

A159

——s ened

the alleged Patriarca Family of La Cosa

Nostra. In the mid-1980s, the government

successfully prosecuted numerous

individuals charged with being co-

conspirators in a enterprise known as the

Patriarca Family of the LCN. See United

States v. Angiulo, 897 F.2d 1169 (1st

Cir. 1990) cert. denied, 112 L. Ed. 2d

98, 111 S. Ct. 130 (1990); United States

v. Zannino, 895 F.2d 1 (list Cir. 1990),

cert. denied, 108 L. Ed. 2d 944, 110 S.

Ct. 1814 (1990); United States v.

Angiulo, 847 F.2d 956 (lst Cir. 1988),

cert. denied, 488 U.S. 928, 102 L. Ed. 2d

332, 109 S. Ct. 314 (1988); United States

v. Cintolo, 818 F.2d 980 (lst Cir. 1987);

cert. denied, 484 U.S. 913, 98 L. Ed. 2d

216, 108 S. Ct. 259 (1987). Much of the

evidence used to obtain those convictions

resulted from the electronic surveillance

A160

of 98 Prince Street, Boston, the regular

headquarters of Gennaro Angiulo, an

"Underboss" of the Patriarca family, and

of 51 North Margin Street, Boston, the

regular site of certain high stakes poker

games. See Angiulo, 847 F.2d at 960;

Zannino, 895 F.2d at 3; Cintolo, 818

F.2d at 983-84.

The convictions obtained in the

foregoing cases resulted in the

incarceration of many of those believed

by the government to have been the

leaders of the Patriarca Family. However,

the government’s investigation of the

Patriarca Family continued.

In the summer of 1989, the FBI was

receiving information about a power

struggle within the Patriarca Family.

Steffens Aff. p. 14; Affidavit of former

Special Agent James A. Ring, dated

A161

sw Deas th Wd

oe ee St a ea

February 25, 1991, para. 3(a) ("Ring

Aff."). In June, 1989, alleged Patriarca

Family "Underboss" William Grasso was

discovered murdered in Connecticut. Ring

Aff. para. 3(b). Francis Salemme, an

alleged Patriarca Family "soldier," was

shot the same day. Id. Information

available to the FBI indicated that the

potential for further violence within the

Patriarca Family escalated after these

events. Id. para. 3(d).

At the same time, the FBI was

receiving information that new members

might soon be inducted into the Patriarca

Family. Id. para. 3(e). Among those

viewed by the FBI as possible candidates

for induction was Vincent Federico. Id.

para. 3(f). Federico, who was then

serving a Massachusetts sentence for

murder, was considered by the FBI to be a

A162

Close associate and potential gunman for

Ferrara. Id.

During the summer of 1989, the

government also had information that

various purported members of the

Patriarca Family, including Joseph Russo,

Vincent Ferrara, and Robert Carrozza,

were suspicious that efforts were being

made to intercept their communications.

Steffens Aff. p. 56-66. Therefore, these

individuals, among others, arranged to

communicate in varying places which would

be both difficult to predict and to

subject to electronic surveillance. Id.

In early July, 1989, Steffens began

preparing an affidavit to document the

efforts of Russo, Ferrara, and Carrozza

to thwart efforts to intercept their

conversations in anticipation of seeking

authorization to conduct roving

A163

*

e.

Bb}

iy - -

electronic surveillance of those

individuals. Supplemental Affidavit of

Diane M. Kottmyer, Assistant United

States Attorney, dated March 6, 1991,

para. 2 ("Kottmyer Supp. Aff.").

By October 20, 1989, the government

believed an induction ceremony might take

[*1276] place in the next few weeks.

Ring Aff. para. 3(g). Because of this

information, among other things, a

decision was made to seek a warrant

authorizing [**23] roving electronic

surveillance of Russo, Ferrara, and

Carrozza. Id. para. 3(i). The government

also decided to seek a similar warrant in

Rhode Island concerning Nicholas Bianco,

another alleged Patriarca Family member.

Kottmyer Supp. Aff. para. 3.

In October, 1989, the Department of

Justice had an established procedure for

Al64

obtaining authorization to apply for a

judicial warrant to conduct electronic

surveillance pursuant to Title III. Id.

para. 5. This procedure required

consultation with the appropriate United

States Attorney; submission to Department

of Justice headquarters in Washington,

D.C. of a proposed application,

affidavit, and order; review at

headquarters and revisions if suggested

by such review; and the approval of the

Attorney General or his designee. Id.

This process usually took about two

weeks. Id. at para. 6. It could, however,

be expedited. Id. Indeed, the United

States Attorney’s Manual stated, in

pertinent part, that "in emergency

Situations, or otherwise where time [was]

of the essence," materials could be faxed

A165

from the field to headquarters. United

States Attorney’s Manual, para. 9-7.113.

In this case, on the morning of

Tuesday, October 24, 1989, the necessary

papers, including the proposed

Application and Steffens’ Affidavit, were

hand-delivered to the Department of

Justice as part of an effort to obtain

expedited authorization to apply to the

court for a roving intercept order

targeted at Russo, Ferrara, and Carrozza.

Ring Aff. para. 3(h).

The Steffens’ Affidavit detailed

considerable information indicating that

Russo, Ferrara, and Carrozza, among

others, were very concerned about being

subject to electronic surveillance and

were structuring their communications to

frustrate any effort to intercept them.

Steffens Aff. pp. 13-66. This information

A166

.

came from confidential informants, visual

surveillance, and tape recordings made in

an earlier undercover operation. Id. The

affidavit indicated that the proposed

targets of the roving intercept attempted

to frustrate possible electronic

surveillance by not discussing criminal

activity on the telephone, not using any

Site regularly for such discussions, and

by often meeting outdoors.

The Steffens’ Affidavit also described

in considerable detail some -- but not

all -- of the information known to the

government which indicated that there was

probable cause to believe the [**25]

principals to be targeted had engaged in

murder, as well as other illegal

activity, on behalf of the Patriarca

Family and that the proposed roving

electronic surveillance was necessary and

A167

ee ee ee ee on ee ee ees

appropriate to the investigation of their

past and continuing criminal conduct. For

example, the Steffens’ Affidavit included

detailed information concerning the

targets’ possible involvement with the

shootings of Grasso and Salemme, Steffens

Aff. pp. 13-47, and interstate travel in

furtherance of illegal gambling, Steffens

Aff. pp. 47-56. The Steffens’ Affidavit

made no mention, however, of the possible

Mafia induction ceremony which had

significantly influenced the decision to

seek judicial approval to conduct roving

interceptions of Russo, Ferrara, and

Carrozza.

The omission from the Steffens’

Affidavit of any reference to a possible

Mafia induction ceremony was deliberate.

Second Supplemental Affidavit of Diane M.

Kottmyer, Assistant United States

Attorney, dated March 18, 1991 paras. 1,

2 ("Kottmyer Second Supp. Aff."). At the

time the affidavit was submitted to the

Department of Justice, Kottmyer believed

that there was sufficient information to

establish the probable cause that

criminal conversations would be captured,

which is required to obtain a warrant,

without relying upon the information

concerning the possible induction

ceremony. Id. para. 2. The government was

concerned, however, that if

communications were intercepted and the

Steffens’ Affidavit was furnished to

members of the Patriarca Family, any

information it contained relating to a

possible induction ceremony might be

valuable in their ongoing effort to

identify informants. Id. para. 1. The

government then had valid reasons to

A169

iti ae le aah én:

le Se ee ees

believe that the Patriarca Family had

historically been willing [*1277] to

use violence and other illegal means to

obstruct investigations and prosecutions.

See, e.g., Angiulo, 847 F.2d at 961-62;

Cintolo, 818 F.2d at 980; United States

v. DiGiacomo, 746 F. Supp. 1176, 1186

(D.Mass. 1990). Thus, the government was

anxious not to jeopardize the safety of

its informants by unnecessarily

compromising their confidentiality.

Kottmyer Second Supp. Aff. para. 2.

At the time the government decided not

to mention the possible Mafia induction

ceremony in the Steffens’ Affidavit, it

had no information concerning the site

for any such ceremony. Ring Aff. para.

3(i); Testimony of Diane Kottmyer on

March 25, 1991 ("Tr.") at 31, 37. Thus,

the information omitted was initially

relevant to whether the probable cause

requirements of Title III were satisfied,

but did not then relate to the special

question raised by a request for a roving

intercept -- whether it was practical to

specify the place to be bugged if a

warrant issued.

On Thursday, October 26, 1989,

however, the FBI learned that a ceremony

to induct new members into the LCN would

take place on Sunday, October 29, 1989.

Ring Aff. para. 3(i); Tr. at 63, 64, 103.

One source said the ceremony would occur

at 11:00 a.m., near Wellington Circle in

Medford, Massachusetts. Ring Aff. para.

3(i); Tr. at 63, 64, 103.

Suspecting that any induction ceremony

might include making Federico a member of

the LCN, later that day the FBI contacted

the Massachusetts Department of

A171

iahaeiniaine:

Corrections and, as it had done in the

past, inquired about Federico’s status.

Ring Aff. para. 3(j). The FBI was

informed that Federico had applied for a

28 hour furlough, beginning on the

morning of Sunday, October 29, 1989. Id.

The FBI did not seek to influence whether

Federico’s request for a furlough would

be granted. Id.

On the morning of Friday, October 27,

1989, Kottmyer had delivered to Judge

Nelson copies of her Application, the

Steffens’ Affidavit and a proposed Order,

which the Department of Justice had not

yet approved for formal submission.

Kottmyer Supp. Aff. para. 7; Tr. at 37.

As Judge Nelson was told, the documents

were furnished for his review in

anticipation of Department of Justice

A172

approval later that day. Kottmyer Supp.

Aff. para. 7.

Also on the morning of Friday, October

27, 1989, the FBI obtained Federico’s

furlough application. Ring Aff. para.

3(k). The application stated that

Federico intended to be at his sister’s

residence at 34 Guild Street, Medford,

Massachusetts on Sunday, October 29,

1990, from 11:30 a.m. to 2:30 p.m. Id.

The FBI was not previously aware of the

34 Guild Street address as a potential

site for the roving electronic

surveillance. Id.; Tr. at 74, 79, 134.

The FBI promptly placed 34 Guild

Street under observation, in part from

the home of an FBI agent who lived on

Guild Street. Ring Aff. para. 3(1); Tr.

at 74, 78-79, 147. At about 12:53 p.m. on

October 27, 1989, Russo, Ferrara and

A173

Angelo Mercurio, another alleged member

of the Patriarca Family, were observed

driving away from 34 Guild Street in a

vehicle later identified as belonging to

Federico’s brother-in-law, Stephan

Distefano, who resided at 34 Guild

Street. Ring Aff. para. 3(1).; Tr. at

80-82, 149.

The information concerning 34 Guild

Street which the FBI had acquired on

Friday, October 27, 1989, was

communicated to Kottmyer before

Department of Justice approval of the

Application for a roving intercept order

was received. By 1:00 p.m., there was

probable cause to believe that on October

29, 1989, the residence at 34 Guild

Street would be used for the induction of

new members into the Patriarca Family and

for the discussion of criminal activity.

Thus, it was then possible to specify one

location which there was probable cause

to believe was about to be used in

connection with the conduct of an illegal

RICO enterprise and at which

communications could be intercepted

pursuant to a warrant authorizing

electronic surveillance.

At the same time, the information in

the Steffens Affidavit concerning the

efforts of Russo, Ferrara, and Carrozza,

among others, to evade electronic

surveillance demonstrated that there was

a significant risk that 34 Guild Street

would not actually [*1278] be used

for the anticipated induction ceremony.

Steffens Aff. pp. 56-66. More

specifically, as the Affidavit amply

indicated, the targets of the proposed

roving interception order had shown a

A175

tendency to arrange their conversations

to frustrate any efforts to intercept

them. Ring Aff. para. 3(0). The FBI

believed that the inherent possibility of

a late change in location was enhanced by

the sensitivity to security which the LCN

would attach to an induction ceremony.

Id. The FBI was also concerned that

inaccurate information concerning an

induction ceremony might have been

disseminated as part of an LCN effort to

identify informants. Id. Thus, the FBI

was skeptical that 34 Guild Street would

prove to be the location of a Mafia

induction ceremony. Id. at para. 3(0).

In addition, while the government on

October 27, 1989, had developed probable

cause to believe that 34 Guild Street

would soon be used once for a LCN

induction ceremony, the conduct described

in Steffens’ Affidavit, among other

things, provided valid reasons for the

FBI to believe Russo, Ferrara, and

Carrozza would continue to use various

other, changing locations to discuss

criminal activity.

The government did not revise the

proposed Application, Affidavit, and

Order it had provided Judge Nelson for

his review that morning. It would not,

however, have been impossible or

impractical to do so.

Rather, the Department of Justice

faxed its approval of the original

application and associated documents to

Kottmyer at 6:11 p.m. on Friday, October

27, 1989. Kottmyer Supp. Aff. para. 6.

Kottmyer and Steffens promptly met with

Judge Nelson. Id. para. 8. In the judge’s

presence, Kottmyer signed the Application

A177

previously furnished and Steffens, under

oath, signed his Affidavit in its

original form. Id.

The Application and Steffens’

Affidavit disclosed prior applications

for electronic surveillance concerning

the principals targeted by the request

for a roving intercept order -- Russo,

Ferrara, and Carrozza -- but did not

provide such information for other

individuals who the government said it

had probable cause to believe were

engaged in the enumerated offenses, but

did not identify as being expected to be

overheard if the Order issued.

Application paras. 5 and 6; see also

Section IV.4, infra, amplifying these

facts. Kottmyer limited the disclosure of

prior applications for electronic

surveillance to the three principals

because she, in good faith, reasonably

but erroneously believed this was all

that was legally required. Kottmyer Aff.

paras. 4, 6.

The Application and Steffens’

Affidavit also did not disclose that

essentially the same information they

contained had recently been used to

obtain a warrant from a district judge in

Springfield, Massachusetts for electronic

surveillance of the automobile of Gaetano

Milano, another alleged member of the

Patriarca Family being investigated in

connection with many of the same crimes

as Russo, Ferrara, and C#rrozza,

including the Grasso murder. Nor did the

government inform Judge Nelson that an

authorization for a roving intercept was

being simultaneously sought in Rhode

Island to investigate Bianco’s

A179

involvement in the same matters. These

matters were not mentioned because

Kottmyer, correctly and in good faith,

did not believe their disclosure to be

required. Kottmyer Supp. Aff. para. 10;

see also section IV.3, infra, amplifying

these facts. In any event, neither the

Milano nor Bianco orders resulted in any

interceptions. Kottmyer Supp. Aff. para.

ll.

More significantly, however, the

Application and Affidavit executed

before Judge Nelson on October 27, 1989

still made no mention of the possibility

of intercepting an LCN induction ceremony

or of the information obtained that day

concerning 34 Guild Street as the

intended location for that event. Thus,

the documents submitted to obtain

judicial approval for the roving

A180

intercept did not contain "a full and

complete statement" as to why it was, in

the government’s view, not practical to

specify the place where oral

communications would be intercepted

pursuant to the warrant being sought.

Indeed, at the time Steffens’ Affidavit

was signed, it was a misstatement for him

to continue to assert that "specification

[*1279] of the location where such

communications are to be intercepted is

not practical because, as set forth in

Part IV infra (Russo, Ferrara, Carrozza]

and their associates use various and

changing meeting places in the District

of Massachusetts with intent to avoid the

oral interceptions of those meetings."

Steffens Aff. para. 4(g), p. 6 (emphasis

added). Similarly, it was incorrect for

Steffens to continue to state that "the

A181

extraordinary technique of electronic

surveillance of a specific location or

telephone is not available in this

instance due to the techniques, described

in this affidavit, that the targets have

employed to thwart such coverage." Id.

para. 74(g). These misstatements in the

Steffens’ Affidavit were not corrected.

Kottmyer did, however, tell Judge

Nelson that interceptions might take

place that weekend and that, as

contemplated by the proposed Order she

had submitted, he would be notified in

advance, if possible, of any

surreptitious entry made in execution of

his Order. Kottmyer Supp. Aff. para. 8;

Tr. at 95, 108-112; Steffens 302 Report

of Investigation on 10/27/89. Although

this statement suggested that the

government had information concerning a

possible location of an imminent meeting

which was not included in its written

submission, the judge did not request any

elaboration. Rather, he gave Kottmyer his

home telephone number, said he would be

unavailable on Saturday afternoon, and

stated that if he could not be reached

before any entry, he should, as also

provided by the proposed Order, be

notified as soon thereafter as possible.

Kottmyer Supp. Aff. para. 8. Kottmyer

also told the judge that the targets

might be indicted before the 30 day

period of the requested warrant expired,

but if that occurred, intercepts would

immediately terminate. Id.

At the time Kottmyer met with Judge

Nelson, she did not believe that 34 Guild

Street would actually be used for a Mafia

induction ceremony. Kottmyer Second Supp.

A183

Aff. para. 4; Tr. at 103, 134-36. Rather,

she felt that her adversaries generally,

and Russo particularly, had been very

"savvy" in their efforts to evade

electronic surveillance. Tr. at 136. She

simply could not believe that they would

tell Federico the location of an

induction ceremony and that he would

disclose the address on a furlough

application. Kottmyer Second Supp. Aff.

para. 4; Tr. at 103, 135-36.

Kottmyer had been busy on the

afternoon of October 27, 1989. Tr. at

158. She worked on other matters; spoke

with officials of the Department of

Justice in Washington, D.C. about the

status of the approval for her

Application and about the possible

indictment of some of the present

defendants; and spoke with Ring and

A184

Steffens about 34 Guild Street and other

possible places roving intercept

authority might be employed. Kottmyer

Second Supp. Aff. para. 4; Tr. at 159.

Kottmyer did not consciously consider

whether she was required by §

2518(11)(a)(ii) to advise Judge Nelson of

the information she had recently received

regarding 34 Guild Street. Tr. at 160-61.

She understood that provision to require

only that an application make a showing

that the proposed targets were

intentionally attempting to thwart

electronic surveillance -- which is the

standard to be met to obtain a roving

wiretap warrant under § 2518(11)(b)(ii).

Tr. at 131. In Kottmyer’s view,

mentioning 34 Guild Street would have

strengthened the evidence of an effort to

frustrate electronic surveillance because

A185

it was a residence at which none of the

individuals under investigation lived and

which would apparently be used only once

to avoid detection. Tr. at 135-36,

161-62.

Nor did Kottmyer fail to mention 34

Guild Street to Judge Nelson in order to

protect the identity of any informant; to

avoid any snags in obtaining the warrant;

or to obtain any perceived tactical

advantage. Tr. at 163-64.

Rather, Kottmyer considered the

information concerning 34 Guild Street

only in connection with her obligation

under the proposed Order to advise the

judge in advance, if possible, of any

decision to make an entry. Tr. at 95,

108-112, 136. When she met with Judge

Nelson, no decision to install a

microphone at 34 Guild Street had been

made and Kottmyer felt it would be

[*1280] premature, at best, to seek

authorization to enter the residence

there. Kottmyer Second Supp. Aff. para.

5; Tr. at 46-47, 82-85. She would,

however, have identified that location if

she had been asked after advising the

judge that an entry might be attempted

that weekend. Kottmyer Second Supp. Aff.

para. 5; Tr. at 137.

It was an error for the government not

to revise its Application and the

Steffens’ Affidavit to include the

information it had obtained concerning 34

Guild Street. As explained in sections

III.3 and IV.2, infra, with regard to

"probable cause," the government is only

required to furnish the court with "a

full and complete statement of the facts

and circumstances relied upon by the

A187

applicant." § 2518(1)(b) (emphasis

added). Thus, the government has some

discretion not to rely upon -- and

therefore not disclose -- all of the

information available to it in seeking to

establish probable cause. See §

2518(1)(b). However, the obligation to

make "a full and complete statement" as

to why the government believes it is

"impractical" to specify the place where

oral conversations to be intercepted will

probably occur is unqualified. The

statute requires the government tell the

court everything on this issue so an

independent, fully informed decision can

be made as to whether it is necessary and

appropriate to issue a roving intercept

warrant. § 2518 (11)(a)(ii).

Nevertheless, after careful

consideration of all of the evidence,

including an assessment of Kottmyer’s

credibility, the court finds her conduct

to have been in complete good faith. She

did not deliberately withhold from Judge

Nelson information she believed was

legally required to be disclosed. In view

of the fast pace at which matters were

proceeding, the government’s sincere and

well-founded skepticism about whether 34

Guild Street would actually be used for

criminal activity, and the lack of

Clarity concerning whether the "full and

complete statement" concerning

"practicality" called for by §

2518(11)(a)(ii) to obtain a roving

warrant to intercept oral communications

required more than the showing of a

purpose to "thwart interception by

changing facilities" called for by §

2518(11)(b)(ii) to obtain authorization

A189

to intercept telephone conversations,

Kottmyer’s conduct also did not

constitute reckless disregard of her

legal obligations. Kottmyer Second Supp.

Aff. para. 6; Tr. at 52-53, 131; see

section IV.2 infra, amplifying these

facts and this analysis.

In addition the omission of the

information concerning 34 Guild Street

and the related misstatements in the

Steffens’ Affidavit were not material.

Rather, the court finds that if Judge

Nelson -- or any reasonable judge -- had

been fully informed concerning the

possible imminent Mafia induction

ceremony and its location, he or she

nevertheless would have authorized

electronic surveillance of 34 Guild

Street, either by signing the proposed

order authorizing the roving interception

in its original form or by amending it to

add express authorization for 34 Guild

Street as well as other, unspecified

locations. More specifically, the court

finds that any reasonable judge presented

on a Friday evening with an Application

providing probable cause to believe a

Mafia induction ceremony could be

intercepted that weekend would not reject

a request for a roving warrant and run

the risk that the opportunity would be

lost while the government attempted to

revise and resubmit its papers.

In any event, at 6:25 p.m. on October

27, 1989, Judge Nelson endorsed the

proposed Order submitted by the

government. See Appendix 2 hereto. In the

Order, the court found, among other

things: that there was probable cause to

believe Russo, Ferrara and Carrozza had

A191

committed, and were continuing to commit,

crimes including murder in the conduct of

a RICO enterprise, Order paras. 2-4; that

normal investigative techniques had

either been tried without success or

reasonably appeared unlikely to succeed

if tried or to be too dangerous, id.

para. 7; that there was probable cause to

believe evidence of the specified crimes

would be obtained through electronic

surveillance of oral communications

involving Russo, Ferrara, or Carrozza,

id. para. 5; and that it was not

practical to specify each of the

locations at which such communications

would be intercepted, id. at 6 (emphasis

added).

[*1281] Thus the Order authorized

the government to "intercept oral

communications made by, directed to,

and/or in the presence of Joseph A.

Russo, Vincent Ferrara, and/or Robert F.

Carrozza concerning [the earlier

identified] offenses, at such various and

changing locations." Id. p. 5. The Order

also authorized the government to enter

buildings surreptitiously to install

listening devices, and required the court

be notified of such entries and their

location in advance if possible, or as

soon thereafter as possible if advance

notice were not feasible. Id. p. 6. In

addition, the Order provided that no

interception could occur unless visual or

other surveillance indicated that Russo,

Ferrara and/or Carrozza was present. Id.

The authorization, by its terms,

terminated after no more than 30 days.

Id. Reports to the court regarding

progress toward achievement of the

A193

authorized objectives and the need for

continued interception were required

every seven days. Id. p. 7.

On the afternoon of Saturday October

28, 1989, Kottmyer and Ring spoke and

decided to attempt to install listening

devices at 34 Guild Street. Tr. at 85. At

about 3:30 p.m., the FBI observed the

DiStefanos leave their home at 34 Guild

Street with their suitcases. Ring Aff.

para. 3(q). At about 4:45 p.m., Kottmyer

called Judge Nelson at his residence to

inform him of the intended entry, but did

not reach him. Kottmyer Aff. para. 3.

Although she left her home telephone

number, the Judge did not call back. Id.

Kottmyer called and spoke with Judge

Nelson in his chambers at 9:00 a.m. on

Sunday, October 29, 1989. Id. She

informed him that, pursuant to his Order,

a surreptitious entry had been made at 34

Guild Street the previous evening and

that interception would likely begin

later that day. Id.; Memorandum of Diane

Kottmyer dated October 30, 1989.

At about 9:40 a.m. on October 29,

1989, the FBI observed Russo and Ferrara

enter 34 Guild Street. Ring Aff. para.

3(u). Interceptions then began. Id. As a

result, the government overheard and

recorded a LCN induction ceremony. The

intercepted conversations also included

discussion of certain criminal activities

of the Patriarca Family. For example,

transcripts of the intercepted

conversations indicate that in the

presence of most of the defendants in

this case, the new members swore their

life-long, paramount loyalty to the LCN

and acknowledged that only death would

A195

end their membership; promised not to

divulge the existence or secrets of the

LCN; and undertook to kill informants,

including blood relatives, if instructed

to do so. At about 4:30 p.m., Russo and

Ferrara left 34 Guild Street and the

electronic surveillance terminated. Ring

Aff. para. 3(v).

During the next two weeks, the FBI

unsuccessfully attempted to identify

other locations for electronic

surveillance pursuant to Judge Nelson’s

Order. Id. para. 3(w). This effort ended

when Russo, Ferrara, and Carrozza were

arrested on November 14, 1989. Id.

On November 16, 1989, Russo, Ferrara,

Carrozza, Lepore, and Angelo Mercurio

were charged in a 57 count, 124 page

Indictment alleging, among other things,

that they were members of a RICO

A196

enterprise known as the Patriarca Family

of the LCN. On March 22, 1990, a 65

count, 152 page Superceding Indictment

was returned by the grand jury. It named

Patriarca, Tortora, and Barone as

additional defendants. The Superceding

Indictment disclosed for the first time

that the October 29, 1989 Mafia induction

ceremony at 34 Guild Street had been

intercepted and recorded by the

government.

III. The Roving Intercept Provisions Of

Title III Are Constitutional As Applied

To This Case.

1. The statute must be analyzed as

applied to this case.

A197

All of the defendants except Lepore

were present and had their communications

intercepted at 34 Guild Street on October

29, 1989. Each of those intercepted is an

"aggrieved person" with standing to

litigate this motion to suppress. See §§

2510(11) and 2518(10)(a).

{*1282] The defendants contend that

the roving intercept provision of Title

III should be found unconstitutional on

its face. More specifically, defendants

contend that a roving intercept order

issued pursuant to § 2518(11) may

authorize the installation of listening

devices at an unlimited number of

locations, without any judicial finding

that there is probable cause to believe

that criminal conversation is about to

occur at each location, and therefore

would allow executing officers a degree

A198

of discretion which violates the Fourth

Amendment.

This court concludes, however, that

the constitutionality of the roving

intercept provision of Title III must be

evaluated as it was implemented by the

Order in this case. When so assessed, the

roving intercept provision is consistent

with the requirements of the Fourth

Amendment.

In support of their claim that the

provisions at issue should be evaluated

facially, defendants mention Berger v.

New York, 388 U.S. 41, 18 L. Ed. 2d

1040,, 87 S. Ct. 1873 (1967), in which a

New York wiretap statute was invalidated

on its face. In Berger, however, four

members of the Supreme Court objected to

deciding the issue on the face of the

statute, rather than as applied. 338 U.S.

A199

baad soe se Se! ee

at 68 (Stewart, J., concurring in the

result)("The issue before us, as Mr.

Justice White says, is ‘whether this

search complied with Fourth Amendment

standards.’"); id. at 70-71 (Black, J.,

dissenting); id. at 90 (Harlan, J.,

dissenting) ("The court declares without

further explanation that since petitioner

was ‘affected’ by [the statute], he may

challenge its validity on its face.

Nothing in the cases of this Court

supports this wholly ambiguous standard .

-"); id. at 107 (White, J., dissenting)

("I dissent from the majority’s decision

which unjustifiably strikes down [the

statute] ’on its face’ .. .").

Since the decision in Berger, the

Supreme Court has clarified that, with

some limited exceptions, when the

constitutionality of a statute is

A200

’

A OP CL Me Eee Seer s

a) ee ee ae eee eee ne ee oe "eo, ey

challenged, the question to be decided is

whether the statute is unconstitutional

as applied in the particular case.

Broadrick v. Oklahoma, 413 U.S. 601, 610,

37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).

As the Court has stated:

Embedded in the traditional rules

governing constitutional

adjudication is the principle that a

person to whom a statute may

constitutionally be applied will not

be heard to challenge the statute on

the ground that it may conceivably

be applied unconstitutionally to

others, in other situations not

before the Court. .. . [This rule]

reflect({s] the conviction that under

our constitutional system courts are

not roving commissions assigned to

pass judgment on the validity of the

Nation’s laws. See Younger v.

Harris, 401 U.S. 37, 92, 27 L. Ed.

2d 669, 91 S. Ct. 746 (1971).

Constitutional judgments, as Mr.

Chief Justice Marshall recognized

{in Marbury v. Madison, 5 U.S. 137,

178, 2 L. Ed. 60 (1803)] are

justified only out of the necessity

of adjudicating rights in particular

cases between the litigants brought

before the court. Id. at 610-11.

A201

pate? es ee ee ee ey et ee ee” | eee ee eT ee ee re ee

)

z

Consistent with this rule, the Supreme

Court refused to invalidate on its face

the pretrial detention provisions of the

Bail Reform Act of 1984. United States v.

Salerno, 481 U.S. 739, 95 L. Ed. 2d 697,

107 S. Ct. 2095 (1987). As the Court

stated in addressing this issue:

The fact that the Bail Reform Act

might operate unconstitutionally

under some conceivable set of

circumstances is insufficient to

render it wholly invalid since we

have not recognized an “overbreadth"

doctrine outside the limited context

of the First Amendment.

Id. at 745. See also Schall v. Martin,

467 U.S. 253, 268 n. 18, 81 L. Ed. 2d

207, 104 S. Ct. 2403 (1984) ("More

fundamentally, this sort of attack on a

criminal [bail] statute must be made on a

case-by-case basis. . . . Outside the

limited First Amendment context, a

criminal statute may not be attacked as

overbroad.").

A202

Indeed, the Supreme Court has

indicated that even when statutes have

been invalidated (*1283] in part

because of their chilling effect on First

Amendment rights:

The statutes [at issue] were

unconstitutional as applied to the

defendants’ conduct, but they were

also unconstitutional on their face

because it was apparent that any

attempt to enforce such legislation

would create an unacceptable risk of

the suppression of ideas. In cases

of this character a holding of

facial invalidity expresses the

conclusion that the statute could

never be applied in a valid manner.

Such holdings invalidated entire

statutes, but did not create any

exception from the general rule that

constitutional adjudication retires

a review of the application of a

statute to the conduct of the party

before the Court.

City Council v. Taxpayers for Vincent,

466 U.S. 789, 797-98, 80 L. Ed. 2d 772,

104 S. Ct. 2118 (1984) (footnotes

omitted) (emphasis added).

A203

en ee ee ae eee Ts NP es a ee eee .

7 . —" i

The defendants claim that their First

Amendment rights are implicated in this

case because the roving intercept was

directed at capturing a Mafia induction

ceremony, which they say involved

defendants’ freedom of assembly,

association and speech. See, e.g., United

States v. Apker, 705 F.2d 293, 301 (8th

Cir. 1983) (First Amendment rights are

implicated, but do not invalidate search

relating to "Hells Angels") cert. denied,

465 U.S. 1005, 104 S. Ct. 996, 79 L. Ed.

2d 229 (1984); United States v. Rubio,

727 F.2d 786, 792 (9th Cir. 1984) (same).

It is, however, doubtful that the

Patriarca family enjoys such protection.

As of October, 1989, the Patriarca

family of the LCN had been proven to be a

RICO enterprise in earlier cases. See

Angiulo, 897 F.2d at 1176; Zannino, 895

A204

Lo ee ee ea ae ee i

- 7

F.2d at 3; Angiulo, 847 F.2d at 960. As

the Court of Appeals said in Apker, "not

all associations of individuals implicate

the right of association. For instance,

{there are no) cases finding criminal

conspiracies themselves within the realm

of the freedom of association." 705 F.2d

at 301 n. 8. Similarly, it is doubtful

that RICO enterprises are within the

realm of freedom of association. Thus, it

is questionable whether First Amendment

rights are implicated in this case.

Even assuming, however, that there is

associational activity protected by the

First Amendment at issue here, this court

concludes that it is not appropriate to

evaluate the constitutionality of 18

U.S.C. § 2518(11) solely on its face,

or exclusively on the basis of its

potential effect in hypothetical cases.

A205

Rather, as the Court of Appeals for the

First Circuit has said in the context of

a conspiracy case:

The fact that a seemingly normal

criminal statute, by virtue of its

prohibition of conspiracy and crime

counseling, may in some instances

apply to affect freedom of

association or freedom of speech

does not invalidate the statute. See

United States v. O’Brien, 391 U.S.

367, 20 L. Ed. 2d 672, 88 S. Ct.

1673 (1968). The court’s obligation

is, rather, to make sure that such 4

statute does not improperly infringe

upon speech in any particular

instance.

United States v. Spock, 416 F.2d 165, 173

n. 20 (1st Cir. 1969); see also United

States v. Rowlee, 899 F.2d 1275, 1278 (2d

Cir. 1990) (First Amendment does not

provide a defense to conspiracy charge

where speech "’is an integral part of

conduct in violation of a valid criminal

statute.’") (quoting New York v. Ferber,

458 U.S. 747, 761-62, 73 L. Ed. 2d 1113,

A206

102 S. Ct. 3348 (1982)), cert. denied,

111 S. Ct. 87 (1990).

Accordingly, it is necessary to

evaluate the constitutionality of the

roving intercept provisions of Title III

as they apply to the circumstances of

this case. More specifically, while the

court recognizes that a limited execution

of an overly broad warrant may not

validate a search, it is necessary to

evaluate the constitutionality of §

2518(11)(a) in the context of the Order

implementing it in this case. For the

reasons explained in the remainder of

this section, such analysis indicates

that the roving intercept provisions are

constitutional as applied in this case.

A207

Se eee ee ee en, en eee) ae eee

2. The purposes of the Fourth

Amendment and its evolving application to

electronic surveillance.

The question whether § 2518(11)

violates the Fourth Amendment requires

consideration of the origins of the

Amendment and its evolution, particularly

as it has been construed concerning

electronic surveillance. As set forth

below, viewed in this context, the roving

intercept provision of Title III is

constitutional as applied in this case.

The origin of the Fourth Amendment

lies largely in the primary causes of the

American Revolution. The Amendment was a

response to the general warrants and

writs of assistance which were "a

motivating factor behind the Declaration

A208

of Independence. " Berger, 388 U.S. at

58.4

The general warrant specified only

an offense -- typically seditious

libel --and left to the discretion

of the executing officials the

decision as to which persons should

be arrested and which places should

be searched. Similarly, the writs of

assistance used in the Colonies

noted only the object of the search

~-any uncustomed goods -- and thus

left customs officials completely

free to search any place where they

believed such goods might be.

“The importance of the general

warrants and writs of assistance in

sparking the American Revolution was

evident to John Adams, who observed the

argument of James Otis, Jr. concerning

the writs before the Supreme Court of

Judicature in 1761. As Adams reported it:

American independence was then and

there born; .. . Every man of a

crowded audience appeared to me to

go away, as I did, ready to take

arms against the writs of

assistance. Then and there was the

first scene of the first act of

opposition to the arbitrary claims

of Great Britain. Then and there the

child Independence was born.

2 Legal Papers of John Adams 107 (K.

Wroth & H. Zobel) (1965).

A209

Steagald v. United States, 451 U.S. 204,

221, 68 L. Ed. 2d 38, 101 S. Ct. 1642

(1981).

As the Supreme Court in Steagald

recognized, the searches and seizures

which spawned the Fourth Amendment were

often aimed at political dissidents. Id.;

see also Stanford v. Texas, 379 U.S. 476,

13 L. Ed. 2d 431, 85 S. Ct. 506 (1965);

Entick v. Carrington, 19 Howell’s State

Trials, 1029 (1765). Such searches were

especially offensive because they

typically involved "the ransacking by

Crown officers of the homes of citizens

in search of evidence of crime or

illegally imported goods. " Frank v.

Maryland, 359 U.S. 360, 363, 3 L. Ed. 2d

877, 79 S. Ct. 804 (1959). The Fourth

Amendment was a direct response to these

abuses. Id.

As Attorney General fdward H. Levi

testified in 1975:

The words cf the Fourth Amendment

are mostly the products of James

Madison. His original version

appeared to be directed solely at

the issuance of improper warrants.°

Revisions accomplished under

circumstances that are still unclear

transformed the Amendment into two

separate clauses. The change has

influenced our understanding of the

nature of the rights it affects.

The National Security Agency and the

Fourth Amendment: Hearings on S. Res. 21

Vol. 5 Before the Senate Select Committee

to Study Government Operations With

*Madison’s proposal read as follows:

The rights of the people to be

secure in their persons, their

houses, their papers, and their

other property, from all

unreasonable searches and seizures,

shall not be violated by warrants

issued without probable cause,

supported by oath or affirmation, or

not particularly describing the

places to be searched, or the

persons or things to be seized.

Levi, supra, citing Annals of Cong., ist

Cong., 1st Sess. p. 452.

A211

Respect to Intelligence Activities, 94th

Cong., lst Sess. (1975) (testimony of

Edward H. Levi, Attorney General of the

United States).

As enacted, the Fourth Amendment

states: "{1] 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 [2] no Warrants shall

issue, but upon probable cause, supported

by oath or affirmation, and particularly

describing the place to be [*1285]

searched, and persons and things to be

seized." U.S. Const. amend. IV.

The structure of the Fourth Amendment

suggests an overriding interest in

assuring that searche and seizures are

reasonable. This structure recognizes the

possibility that exigent circumstances,

among other things, might render

obtaining a warrant impractical. See,

e.g., Shmerber v. California, 384 U.S.

757, 761-77, 16 L. Ed. 2d 908, 86 S. Ct.

1826 (1966) (blood test for drunkenness) ;

Chimel v. California, 395 U.S. 702, 28 &.

Ed. 2d 685, 89 S. Ct. 2034 (1969) (search

incident to arrest); California v.

Carney, 471 U.S. 386, 85 L. Ed. 2d 406,

105 S. Ct. 2066 (1985) (automobiles).

Usually, however, a warrant issued by

an independent judicial officer, based

upon a showing of probable cause, was

considered to be an essential element of

a reasonable search As the Court stated

in Steagald:

The placement of this checkpoint

between the Government and the

citizen implicitly acknowledges that

an "officer engaged in the often

competitive enterprise of ferreting

out crime," Johnson v. United

States, 333 U.S. 10, 14, 92 L. Ed.

436, 68 S. Ct. 367 (1948), may lack

A213

sufficient objectivity to weigh

correctly the strength of the

evidence supporting the contemplated

action against the individual’s

interests in protecting his own

liberty and the privacy of his home.

451 U.S. at 212.

In addition, the Fourth Amendment

requires that the place to be searched

and the items to be seized be desc~vibed

"particularly." The primary purpose of

these provisions is to limit the

discretion, and promote the

accountability, of the officers executing

a warrant. A particular description of

the thing to be seized precludes general

searches and prevents the seizure of one

thing under a warrant describing another.

Marron v. United States, 275 U.S. 192,

196, 72 Lb. Bd. 231; 46:8. Ct. 74

(1927).° The requirement that the place

In Marron, the Supreme Court also

stated that, "as to what is to be taken,

(continued...)

A214

to be searched be described particularly

serves as a Similar purpose, and has been

interpreted to mean only that the

description be "such that the officer

with a search warrant can with reasonable

effort ascertain, and identify the place

intended." Steele v. United States, 267

U.S. 498, 503, 69 L. Ed. 757, 45 S. Ct.

414 (1925).

Our understanding of the purposes and

effects of the Fourth Amendment has been

6(...continued)

nothing is left to the discretion of the

officer executing the warrant." 257 U.S.

at 196. The evolution of Fourth Amendment

jurisprudence, however, indicates that

this statement is now too expansive. Some

discretion in executing a warrant is

today recognized as permissible. For

example, officers may seize evidence not

specified in a warrant if it is

discovered in plain view in the course of

a legitimate search. Horton v.

California, 496 U.S. 128, 110 S. Ct.

2301, 110 L. Ed. 2d 112 (1990); Coolidge

v. New Hampshire, 403 U.S. 443, 29 L. Ed.

2d 564, 91 S. Ct. 2022 (1971).

A215

an evolving one. From the outset, the

Amendment has been understood to protect

the people from the unlimited authority

of law enforcement officials to search

almost anywhere and seize almost anything

which characterized the despised general

warrants and writs of assistance.

Over time, however, the Amendment has

been construed to serve other purposes.

One such purpose is to accord to each

individual a measure of autonomy and

privacy, which are vital to human

dignity. As Justice Louis Brandeis stated

it in his dissent in Olmstead v. United

States, in the Fourth Amendment the

Founders “conferred, as against the

Government, the right to be let alone --

the most comprehensive of rights and the

right most valued by civilized men. "

Olmstead v. United States, 277 U.S. 438,

478, 48 S. Ct. 564, 72 L. Ed. 2d 944

(1928) (Brandeis, J., dissenting). Thus,

while the Fourth Amendment does not

establish an unqualified right to

privacy, promoting individual autonomy is

a value close to its core. Levi, supra.

As a corollary of this, the Fourth

Amendment reflects a special concern with

intrusions when the purpose is to obtain

[**57] evidence to incriminate the

victim of a search. Id. This concern for

self-incrimination is reflected in the

Supreme Court’s test which limits

standing to invoke the exclusionary rule

to situations where the Government seeks

to use such evidence to incriminate the

victim of the unlawful search. United

[*1286] States v. Calandra, 414 U.S.

338, 348, 38 L. Ed. 2d 561, 94 S. Ct. 613

(1974).

A217

The Fourth Amendment also reflects a

particular concern for protecting freedom

of thought, speech, and religion. As

Justice Lewis Powell wrote, "Fourth

Amendment protections become the more

necessary when the targets of official

surveillance may be those suspected of

unorthodoxy in their political beliefs."

United Sates v. United States District

Court, 407 U.S. 297, 314, 32 L. Ed. 2d

7182, 92° 0. Ce. 2428 41972).

The interpretation of the Fourth

Amendment as applied to electronic

surveillance has been especially

characterized by evolution. In Olmstead,

Chief Justice William Howard Taft,

writing for the majority, found that

wiretapping a telephone conversation to

develop evidence to be used in a criminal

trial did not constitute a "search" or

A218

"seizure" in the absence of a physical

trespass. Olmstead, 277 U.S. at 464. The

Amendment expressly protects the right of

the people to be secure in their

"persons, houses, papers and effects."

These words indicate a concern for

tangible items. Thus, Chief Justice Taft

found that for the Fourth Amendment’s

prohibition to apply, the search at issue

must be for "material things." Id.

Accordingly, in the absence of a physical

entry to a house or office, the

interception of telephone communications

was found in Olmstead not to involve a

"search" or "seizure" within the meaning

of the Fourth Amendment. Id.

In his dissent, Justice Brandeis

decried the Chief Justice’s analysis,

stating that, "time and again, this Court

in giving effect to the principle

A219

Se i ee OD a —

underlying the Fourth Amendment, has

refused to place an unduly literal

construction upon it." Id. at 476

(Brandeis, J., dissenting). Echoing this

view, Justice Oliver Wendell Holmes, Jr.

wrote, "I fully agree that Courts are apt

to err by sticking too closely to the

words of a law where those words import a

policy that goes beyond them." Id. at 469

(Holmes, J., dissenting).

After Olmstead, the interpretation of

the Fourth Amendment in cases concerning

the interception of wire and oral

communications steadily departed from

application of its literal language and

increasingly adopted a functional

approach aimed at protecting privacy from

unreasonable searches. See Goldman v.

United States, 316 U.S. 129, 86 L. Ed.

1322, 62 S. Ct. 993 (1942) (indicating

that private conversation could be a

protected "effect" within the meaing of

the Fourth Amendment); Silverman v.

United States, 365 U.S. 505, 5 L. Ed. 2d

734, 81 S. Ct. 679 (1961) (abandoning

theory of trespass and relying on concept

of a "constitutionally protected area" to

Suppress overheard evidence); Wong Sun v.

United States, 371 U.S. 471, 9 L. Ed. 2d

441, 83 S. Ct. 407 (1963) (expressly

holding Fourth Amendment protects against

overhearing of verbal statements). This

trend led to the recognition in Berger

that Olmstead had effectively been

Overruled. Berger, 388 U.S. at 41.

In Berger, the Supreme Court

invalidated the New York wiretapping

statute because of a combination of

defects which cumulatively violated the

Fourth Amendment. Id. The Court found

A221

that the statute at issue satisfied the

requirement that a warrant be issued by

an independent judicial officer. Id. at

54. The statute was deemed

constitutionally infirm, however, because

it: did not require a showing of probable

cause to believe a particular offense had

been or was being committed, id. at

58-59; did not require a particular

description of the conversations to be

intercepted, other than to identify the

targeted individual, id. at 59; was for a

two-month period, and permitted

extensions without any further showing of

probable cause, id. at 59; and did not

provide for the return of the warrant to

a judicial officer. Id. at 60. Thus, the

Court found that the statute failed to

meet the Fourth Amendment’s probable

cause requirement and unconstitutionally

A222

left too much discretion to the executing

officers. Id. at 59-60.

[*1287] In Berger, the Supreme Court

contrasted the New York statute with the

procedure it had recently affirmed in

Osborn v. United States, 385 U.S. 323, 17

L. Ed. 2d 394, 87 S. Ct. 429 (1966).

Berger, 388 U.S. at 57. In Osborn, a

judicial warrant, based on a showing of

probable cause to believe a crime was

being committed, was issued for the

surreptitious tape recording of a

conversation with the consent of one of

the participants. 385 U.S. 326-330. As

described in Berger, the warrant in

Osborn "afforded similar protections to

those that are present in the use of

conventional warrants authorizing the

seizure of tangible evidence." 388 U.S.

at 57 (emphasis added).

A223

The Court reiterated this observation

concerning Osborn in Katz v. United

States, 389 U.S. 347, 19 L. Ed. 2d 576,

88 S. Ct. 507 (1967). In Katz, the Court

emphasized that, “although the

protections afforded the petitioner in

Osborn were ‘similar .. . to those

of conventional warrants, they were not

identical" because they did not provide

for advance notice to the suspect of the

intended search. 389 U.S. at 355 n. 16.

In both Berger and Katz, the Supreme

Court stated that the protections

provided by the somewhat unconventional

warrant in Osborn were constitutionally

sufficient because they permitted "no

greater invasion of privacy . .. than

was necessary under the circumstances."

Berger, 388 U.S. at 57; Katz, 389 U.S. at

355.

A224

ae ae See eee ee eS eee er ee re

Katz clearly established, however,

that a warrant was required for a

wiretap, even in the absence of a

trespass because, as the Court then held,

"the Fourth Amendment protects people not

places." 389 U.S. at 351. The Court

invalidated the warrantless wiretap at

issue in Katz because the government had

not obtained a warrant in circumstances

where a judicial order similar to that

issued in Osborn "could have accommodated

‘the legitimate needs of law enforcement’

by authorizing the carefully limited use

of electronic surveillance." Id. at

355-56 (quoting Lopez v. United States,

373 U.S. 427, 464, 10 L. Ed. 2d 462, 83

S. Ct. 1381 (1963) (Brennan, J.,

dissenting)).

Accordingly, by 1968, Olmstead had |

been clearly overruled; the Supreme Court

A225

had established that the Fourth Amendment

applied to the interception of wire and

oral communications; and it was clear

that judicial warrants would generally be

required for such interceptions.

Significantly for this case, however, the

Supreme Court also then recognized that

such orders might properly differ from

conventional warrants aimed at searches

and seizures for tangible items in order

to accommodate "the legitimate needs

[**63] of law enforcement." Id.

3. The Enactment and Evolution of

Title III.

In 1968, Title III was enacted as a

direct response to the recent decisions

in Berger and Katz. Congress sought to

enact a statute which would properly

protect the privacy of oral and wire

communications, while delineating a°

uniform basis to obtain authorization of

their interception in appropriate cases.

S. Rep. No. 1097, 90th Cong., 2d Sess. 2,

reprinted in 1968 U.S. Code, Cong. &

Admin. News 2157 (hereinafter "1968 Leg.

Hist. at *%).

"The major purpose of Title III [was)

to combat organized crime." 1968 Leg.

Hist. at 2157. Congress and the President

moved quickly to enact Title III because

it was recognized that "intercepting the

communications of organized criminals is

the only effective method of learning of

their activities." Id. at 2159; see also

1968 Leg. Hist. at 2177.

Title III as originally enacted

contained provisions intended to meet the

requirements of the Fourth Amendment as

expressed in Berger and Katz, and also

contained many additional provisions to

regulate the interception of

communications which were not

constitutionally compelled. As explained

in Section IV.1, infra, this distinction

has come to make a difference with regatd

to motions to suppress. The judicially

crafted and evolving exclusionary rule

concerning violations of the Fourth

[*1288] Amendment is applicable to

violations of the provisions of Title III

which reflect constitutional commands,

while the static statutory exclusionary

provisions of Title III govern violations

of sections of the statute which are

solely legislated requirements.

Title III recognizes that there may be

emergency situations involving organized

crime in which it would not be possible

to obtain a warrant to intercept

A228

communications. See 18 U.S.C. § 2518(7)

(1988). In such limited circumstances,

brief warrantless surveillance, subject

to later judicial approval, is

authorized. Id. Absent such an exigency,

however, the statute requires a judge to

issue an order authorizing the

interception of any oral or wire

communication.

To obtain a warrant to intercept

communications the government must make a

"full and complete statement of the facts

and circumstances relied upon" to satisfy

several constitutional criteria. § 2518

(1) (b), (c), (dad). These include a "full

and complete statement as to whether or

[**65] not other investigative

procedures have been tried and failed, or

why they reasonably appear to be unlikely

to succeed if tried or to be too

dangerous." § 2518(1)(c). This showing of

necessity reflects the Fourth Amendment

requirement that searches and seizures be

"reasonable" and addresses the related

statements in Berger, 388 U.S. at 57, and

Katz, 389 U.S. at 355-56, that courts

should authorize "no greater invasion of

privacy . . . than [is] necessary under

the circumstances." See also Goldsmith,

The Supreme Court and Title III:

Rewriting the Law of Electronic

Surveillance, 74 J. Crim. L. &

Criminology 1, 126 (1983).

Title III also requires that the

government furnish the court with the

information it relies upon in

representing that probable cause exists

to believe that a particular offense has

been or will be committed; particularly

describing the place where oral

communications will be intercepted;

particularly describing the type of

communications sought to be intercepted;

and identification of the person, if

known, committing the offense and whose

communications are to be intercepted. §

2518(1)(b) (i), (ii), (iii) (emphasis

added). Congress thought all these

provisions were necessary to address the

particularity requirements of the Fourth

Amendment. 1968 Leg. Hist. at 2190. The

Supreme Court subsequently clarified,

however, that "it is not a constitutional

retirement that all those likely to be

overheard engaging in incriminating

conversations be named." United States v.

Donovan, 429 U.S. 413, 427 n. 15, 50 L.

Ed. 2d 652, 97 S. Ct. 658 (1977).

The statute provides that the judge

may require that the government furnish 7

A231 ;

additional information in support of its

application. § 2518(2). It also provides

that the judge may enter an order

authorizing an interception "as requested

or as modified" by the judge. § 2518(3).

Any such order, however, is required to

include findings by the issuing judge

that, among other things, the statutory

provisions of Title III which implement

the probable cause and necessity

requirements of the Fourth Amendment are

satisfied. § 2518(3)(a)(b)(c). In

addition, except with regard to roving

intercepts and wiretaps, the court must

find there is probable cause to believe

that criminal conversations will be

intercepted at a specified location. §

2518(3)(d).

As indicated earlier, Title III also

includes many provisions which do not

reflect commands of the Fourth Amendment.

For example, these include the statutory

requirements that the government’s

application be authorized by a senior

official of the Department of Justice,

that all prior applications for

electronic surveillance of certain

individuals be identified, that all

intercepted conversations be recorded,

and that such tapes be sealed. §§ -

2516(1), 2518(1)(c), 2518(8).

In 1986, Congress amended Title III

a eee pon ey rata Sah. = a a ee ae ae

he

to, among other things, add the roving

intercept provisions at issue in this §

case. § 2518(11). Section 2518(11) .

reflects a recognition that criminals,

particularly including members of

Organized, crime, have become aware of the

government’s ability to [*1289]

intercept their communications and often

A233

ee ee roe.

endeavor to frustrate such law

enforcement efforts.

Subsection 11(a), which relates to the

interception of oral communications,

relaxes the usual Title III requirements

that the government provide the court in

advance with "a particular description of

the place where the communication

is to be intercepted," § 2518(1)(b)(ii),

and the requirement that the court find

that there is probable cause to believe

that [**68] place is "being used, or

[is] about to be used in connection with"

an offense for which electronic

surveillance is authorized" by Title III,

§ 2518(3)(d). To obtain such an order,

the government must furnish the court

with:

[A] full and complete statement of

why such specification is not

practical and identifying the person

committing the offense and whose

A234

communications are to be

intercepted.

§ 2518(11)(a)(ii) (emphasis added). The

court must then find the usual

specification of the place to be searched

"is not practical." § 2518(11)(a)(iii).

The parallel provision concerning

roving wiretaps for the interception of

telephone communications requires the

government to identify the person

committing the offense and "a showing of

& purpose, on the part of that person, to

thwart interception by changing

facilities." § 2518(11)(b)(ii). Once

again, the court must independently

determine that the required showing has

been made. § 2518(11)(b)(iii).

Thus, while the roving intercept and

roving wiretap provisions were apparently

Similarly motivated, they include

somewhat different, and potentially

A235

C ee aD

a ished iG Dan ec dtct haan: tebe ils os

ee ee

eth dintaks . A

confusing, standards. More specifically,

the roving intercept provision requires a

"full [**69] and complete statement;"

the roving wiretap provision does not.

Similarly, the roving intercept provision

requires a showing that it is impractical

to satisfy the usual specification

requirements of Title III; the roving

wiretap provision requires a

demonstration that the individual to be

targeted is attempting to evade

interception.

The legislative history does not

indicate whether these distinctions were

intended to have substantive effects.

With regard to the roving interception

provisions, Congress cited an effort to

thwart surveillance as the example of

impracticality, stating:

The judge must find that the

ordinary specification rules are not

A236

practical. Situations where ordinary

specification rules would not be

practical would include those where

a suspect moves from room to room in

a hotel to avoid a bug or where a

suspect sets up a meeting with

another suspect on a beach or a

field. In such situations, the order

would indicate authority to follow

the suspect and engage in the

interception once the targeted

conversation occurs.

S. Rep. No. 541, 99th Cong. 2d Sess. 5,

reprinted in 1986 U.S. Code Cong. &

Admin. News 3555, 3586 (hereinafter "1986

Leg. Hist. at *).

The corresponding legislative history

concerning the roving wiretap provision,

which immediately follows the above-

quoted language, simply states that "the

rule with respect to ’wire

communications’ is somewhat similar." Id.

It then goes on to cite examples of a

terrorist who moves from phone booth to

phone booth to avoid detection, or a

person who is overheard saying he or she

A237

te) eae

OP ee ee tees

will use different telephones to evade

surveillance. Id.

Thus, it appears that the roving

intercept provision contemplates that a

roving authorization will often be

obtained in cases where specifying a

location in advance is not practical

because the target is attempting to

thwart surveillance, but is not limited

to such circumstances.

In any event, the roving intercept

provision does not relax the usual Title

III provisions which relate to the Fourth

Amendment requirement that the

conversation to be intercepted -- which

is the thing to be seized -- be described

with particularity. Indeed, in contrast

to the usual case where the anticipated

speaker must be identified only "if

known," 2518(1)(b)(iv), the person

targeted for roving interception must be

identified and only specified criminal

[*1290] conversation involving [**71]

that individual may be intercepted. §§

2518(4)(c), 2518(11)(2)(ii).

In addition, the roving intercept

provisions address the Fourth Amendment’s

requirement that the place to be searched

be particularly described by identifying

that location in terms of where a

specified individual engages in certain

conversation. Interceptions pursuant to a

roving intercept order "shall not begin

until . . . the place where the

communication is to be intercepted is

ascertained." § 2518(12). In this case,

this statutory provision was implemented

in the Order which required that no

interception occur unless visual or other

surveillance indicated that one of the

A239

targeted individuals was present. It is

this aspect of the Warrant which

defendants’ most strenuously assert is

constitutionally inadequate.

As set forth below, however, the court

concludes that the search and seizures

authorized by the Order implementing the

roving intercept provisions in this case

were reasonable and satisfied the

particularity requirements of the Fourth

Amendment, including the requirement that

the place to be searched be particularly

described.

4. The evolution of the Fourth

Amendment since Berger and Katz.

Since the Supreme Court decided Berger

and Katz in 1967, its interpretation of

the Fourth Amendment has continued to

evolve in ways which must be recognized

A240

in resolving defendants’ claim that the

roving intercept provision of Title III

is unconstitutional. Among other things,

the Court has observed that, "crime has

changed, as have the means of law

enforcement ... . [thus the Fourth]

Amendment’s prohibition against

‘unreasonable searches and seizures’ must

be interpreted ’in light of contemporary

norms and conditions.’" Steagald v.

United States, 451 U.S. 204, 217 n. 10,

68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981)

(quoting Payton v. New York, 445 U.S.

573, 591, n. 33, 63 L. Ed. 2d 639, 100 S.

Ct. 1371 (1980)). Accordingly, Justice

William Brennan’s observation that "the

requirements of the Fourth Amendment are

not inflexible, or obtusely unyielding to

the legitimate needs of law enforcement"

remains valid. Lopez v. United States,

A241

373 U.S. 427, 464, 10 L. Ed. 2d 462, 83

S. Ct. 1381 (1963) (Brennan, J.,

dissenting); see also Berger, 388 U.S. at

63.

In addition, the Supreme Court has, at

least since the era in which Berger and

Katz were decided, affirmed the

relaxation of traditional Fourth

Amendment requirements where it was

impractical to implement them and the

intrusions at issue were deemed necessary

and reasonable. In 1968, Chief Justice

Earl Warren wrote the opinion finding

that police can conduct a limited stop

and frisk upon less than probable cause

because "as a practical matter" a stop

and frisk could not be subject to a

warrant and probable cause requirement

and still allow law enforcement officers

to take the measures required to assure

A242

i pl

eae

FER Fe Te Oe Pe ee ae ©

eS ey ee, Ce Sn es See ae, ee Tee hp ee, eye ee

that those stopped for questioning are

not armed and dangerous to them. Terry v.

Ohio, 392 U.S. 1, 20-21, 23-24, 20 L. Ed.

2d 889, 88 S. Ct. 1868 (1968). Similarly,

the Court’s holding that a roving Border

Patrol may stop a car and briefly

question its occupants upon less than

probable cause was based in part upon

"the absence of practical alternatives

for policing the border." United States

v. Brignoni-Ponce, 422 U.S. 873, 881, 45

L. Ed. 2d 607, 95 S. Ct. 2574 (1975).

More recently, the Supreme Court has ia

increasingly emphasized that "the :

fundamental command of the Fourth :

Amendment is that searches and seizures

be reasonable." New Jersey v. T.L.0O., 469

U.S. 325, 340, 83 L. Ed. 2d 720, 105 S.

Ct. 733 (1985). As a result, the Court

has approved searches and seizures in a

A243

school, leading to a criminal

prosecution, without requiring a warrant

or the existence of probable cause to

justify the intrusion. Id. Similarly, the

Court has approved alcohol and drug

testing for railway workers following

accidents, for which criminal

prosecutions are possible, without

requiring a warrant or even reasonable

suspicion that a particular employee may

have been impaired. Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602,

[*1291] 103 L. Ed. 2d 639, 109 S. Ct.

1402 (1989). The decisions in both :

Skinner and T.L.O. rested on the Court’s

perception that requiring warrants and

probable cause for a search were

impractical. Skinner, 489 U.S. at 619;

T.L.0., 469 U.S. at 351 (Blackmun, J.,

concurring).

A244

As a corollary of this increasing

willingness to dispense with the warrant

and probable cause requirements of the

Fourth Amendment, the Court has required

the utilization of judicial warrants, but

encouraged flexibility concerning their

content when conventional terms could not

feasibly be employed. Thus, while

requiring a warrant for administrative

housing code searches, which could lead

to criminal prosecutions, the Court

indicated that it was not necessary to

have probable cause to believe a

particular building contained a code

violation to obtain an order authorizing

entry. Camara v. Municipal Court, 387

0.3. $23, 16°L. Bis BE 996, B87 8. ct.

1727 (1987). Rather, the Court indicated,

an appraisal of conditions in an area as

a whole would suffice. Id. at 536. In

A245

SO a CE CEE

these circumstances, the court emphasized

that “reasonableness is still the

ultimate standard," id. at 539, and

explained that "there can be no ready

test for determining reasonableness other

than by balancing the need to search

against the invasion which the search

entails," id. at 536-37.

Similarly, the Supreme Court has

indicated that a warrant is needed to

search vehicles some distance from our

borders for illegal entrants, but

suggested that a special form of order

would be appropriate. Almeida-Sanchez v.

United States, 413 U.S. 266, 284-85, 37

L. Ed. 2d 596, 93 S. Ct. 2535 (Powell,

J., concurring). As Justice: Powell put

it, "’different standards may be

compatible with the Fourth Amendment if

they are reasonable both in relation to

A246

the legitimate need of Government

and the protected rights of our

citizens.’" Id. (quoting, [**76] United

States District Court, 407 U.S. at

322-23).

Most significantly for this case, the

Supreme Court has indicated that it would

be appropriate to relax the specificity

of the description of the place to be

searched in a warrant if this were

necessary to the viability of requiring a

judicial order for a search and seizure.

United States v. Karo, 468 U.S. 705, 82

L. Ed. 2d 530, 104 S. Ct. 3296 (1984). In

Karo, the government placed a beeper in a

container of ether, an ingredient used in

making illicit drugs. It then monitored

the beeper as the container was

transported to and kept in a specific

house. The information generated by the

A247

aM ig REE i Reaecraick (eas Sa RR

peers Sth is 6 aie || ha:

ee ea

ond a

beeper was used to secure a search

warrant for that residence, which —

resulted in a criminal prosecution. Id.

at 714.

The Supreme Court in Karo found that

the monitoring of the beeper at the house

was the functional equivalent of an entry

to determine whether the container was

there, and thus constituted a warrantless

search and seizure. Id. at 715. This was

deemed to be unreasonable and, therefore,

a violation of the Fourth Amendment. Id.

The Court explained that "requiring a

warrant will have the salutary effect of

ensuring that use of beepers is not

abused, by imposing upon agents the

requirement that they demonstrate in

advance their justification for the

desired search." Id. at 717.

A248

While invalidating the warrantless

search and seizure in Karo, the Court

recognized that it would not be possible

to identify in a warrant the address at

which the beeper would be monitored

because this was the exact information

the beeper was employed to discover.

However, the Court stated in language

particularly meaningful for the instant

case:

We are also unpersuaded by the

argument that a warrant should not

be required because of the

difficulty in satisfying the

particularity requirement of the

Fourth Amendment. The Government

contends that it would be impossible

to describe the "place" to be

searched, because the location of

the place is precisely what is

sought to be discovered through the

search. However true that may be, it

will still be possible to describe

the object into which the beeper is

to be placed, the circumstances

[*1292] that led agents to wish to

install the beeper, and the length

of time for which beeper

surveillance is requested. In our

view, this information will suffice

A249

Te eR ere Re ape

Oe ERT PN. ANE

to permit issuance of a warrant

authorizing beeper installation and

surveillance. Id. at 718 (emphasis

added).

From the foregoing, the court

concludes that the following principles

are applicable to determining the

constitutionality of the roving intercept

provisions now at issue. Any search and

seizure must be reasonable. Obtaining a

warrant from a detached judicial officer

is, absent truly exigent circumstances,

an important element of reasonableness.

Usually such a warrant must specify the

address of a single location, or several

particular locations, to be searched. If,

however, this level of specificity is,

for good reasons, not practical, it is

reasonable to describe the place to be

searched differently. Such a description

may leave some discretion in the

executing officers, if this is not likely

A250

to result in mistaken, unjustified

intrusions and is necessary to both

maintain the requirement of prior

judicial approval and to accommodate

legitimate, important needs of law

enforcement.

As set forth below, the roving

intercept provisions, as implemented by

the Order in this case, fully meets this

test.

5. The roving intercept provision is

constitutional as applied in the context

of the Order in this case.

As set forth below, the roving

intercept provision as applied by the

Order in this case authorized a search

and seizure which was reasonable, and

which was made pursuant to a warrant

that, among other things, satisfied the

A251

AROS A Ee NS A BAL SOO a oie

particularity clauses of the Fourth

Amendment. Section § 2518(11)(a) is,

therefore, constitutional as applied

here.

Although the defendants make expansive

claims concerning the invasion of their

privacy in this case, they only have

standing to complain concerning the

capture of their conversation. They did

not have any legitimate interest in the

privacy of the Distefano’s residence at

34 Guild Street before they arrived

there. Thus, they lack standing to assert

that the entry to install listening

devices injured their rights. See United

States v. Volpe, 430 F. Supp. 931, 945

(D.Conn. 1977), aff’d, 578 F.2d 1372 (2d

Cir. 1978), cert. denied, 441 U.S. 930,

60 L. Ed. 2d 658, 99 S. Ct. 2049 (1979);

see also, J. Carr, The Law of Electronic

A252

Surveillance § 6.2(b)(3) at 6-36.1

(1990).

More specifically, as the Supreme

Court observed in Karo:

A "search" occurs "when an

expectation of privacy that society

is prepared to consider reasonable

is infringed" United States v.

Jacobsen, 466 U.S. 109, 113, 80 L.

Ed. 2d 85, 104 S. Ct. 1652 (1984).

. A "seizure" of property occurs

when ‘there is some meaningful

interference with an individual’s

possessory interest in that

property." Ibid.

468 U.S. at 712. The defendants had no

possessory interest or reasonable

expectation of privacy concerning 34

Guild Street before they arrived there on

October 29, 1989.’

‘The entry at 34 Guild Street was,

in any event, authorized by the Warrant

and permissible as necessary to implement

the justified authorization to intercept

certain conversations. See Dalia v.

United States, 441 U.S. 238, 60 L. Ed. 2d

177, 99 S. Ct. 1682 (1979).

A253

pe NE ee ne tee ee ook ee ee

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The Fourth Amendment does, however,

apply to the defendants’ conversations

while at 34 Guild Street because

individuals legitimately expect that

their conversations while in the homes of

others will be private and society is

prepared to recognize such expectations

as reasonable. See Minnesota v. Olson,

495 U.S. 91, 110 S. Ct. 1684, 1687, 109

L. Ed. 2d 85 (1990); Katz, 389 U.S. at

361 (Harlan, J., concurring).

The interception of an oral discussion

is, of course, a "search and seizure."

Berger, 388 U.S. at 51. The first and

fundamental question then is whether that

search and seizure was reasonable.

T.L.0O., 469 U.S. at 340. This "requires

‘balancing the need to [*] search

against the invasion which the search

A254

entails.’" Id. at 337 (quoting Camara,

387 U.S. at 536-37).

In this case, the invasion was in one

important sense most serious -- its

purpose and effect was to obtain evidence

to be used against the subjects of the

search in a criminal prosecution. In

addition, if it is assumed that

associational activity enjoying First

Amendment protection was also implicated,

the burden imposed by the intrusion is

magnified.

Nevertheless, the search and seizure

at issue -- the interception of the Mafia

induction ceremony -- was reasonable. As

Congress expressly recognized in enacting

Title III, organized crime presents a

serious threat to our society and the

ability to intercept communications is :

indispensable to combating organized

A255

Se Nhs Tin TOM EOS othe

abe EA Pe rece 4

Se ee ee ee Ee ee ee ee Tae

crime. In this case, Title III was

utilized to serve its major purpose,

investigating serious crimes -- including

a RICO conspiracy allegedly involving

murder, drug trafficking, and obstruction

of justice -- by organized criminals. See

United States v. Kahn, 415 U.S. 143, 151,

39 L. Ed. 2d 225, 94 S. Ct. 977 (1974).

This is not a case where there is any

suggestion that the defendants were

targeted because of their political or

religious beliefs. Nor was the search

aimed at obtaining their publications.

Zurcher v. Stanford Daily, 436 U.S. 547,

564, 56 L. Ed. 2d 525, 98 S. Ct. 1970

(1978); Stanford v. Texas, 379 U.S. 476,

482, 13 L. Ed. 2d 431, 85 S. Ct. 506

(1965).

In addition, the activity at issue

here did not involve an invasion of any

A256

defendant’s home or office.® In this

case, the government did not intrude upon

any defendant’s most personal, private

space. Indeed, the defendants evidently

chose 34 Guild Street because they had no

prior association with it and thus hoped

to evade detection. Therefore, in

balancing the competing considerations to

determine reasonableness, the value to be

attributed to defendants’ expectation of

privacy is diminished. See United States

v. Torres, 751 F.2d 875, 883 (7th Cir.

1984) [**83] cert. denied, 470 U.S.

8The balancing concerning

reasonableness might be different if the

government’s efforts concerning 34 Guild

Street had generated evidence to be used

against its residents, the DiStefanos.

See Steagald, 451 U.S. at 211-16.

A257

sisal a le Sk

ek es Sos

1087, 85 L. Ed. 2d 150, 105 S. Ct. 1853

(1985).?

The fact that the roving interception

was conducted pursuant to a warrant also

militates in favor of its reasonableness.

The judgment as to whether this

extraordinary investigative technique was

necessary and appropriate was made by an

independent judge, rather than by "the

officer engaged in the often competitive

enterprise of ferreting out crime."

Johnson v. United States, 333 U.S. 10,

14, 92 L. Ed. 436, 68 S. Ct. 367 (1948).

[**84] As described below, the warrant

at issue is conventional in every respect

%In Torres, the court stated: "A

safe house is not a home. No one lives in

these apartments, amidst the bombs and

other paraphernalia of terrorism. They

are places dedicated exclusively to

illicit business ... . There is no

right to be let alone while assembling

bombs in safe houses". 751 F.2d at 883.

A258

except its description of the place to be

searched. This exception would be

justified if a judge properly found it

was impractical to describe the place to

be searched in the customary fashion,

particularly if that conclusion was based

upon a showing that the targeted

individuals were structuring their

communications to thwart surveillance.

Defendants correctly contend that in

this case once the roving intercept order

was issued, there was no express

limitation on the number of places in

which the government could install

listening devices based upon executive,

rather than judicial, branch decisions

that there was a proper basis to do so.

This theoretical potential for a large

number of entries and installations,

however, does not render the searches and

A259

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seizures authorized by the Order in this

case unreasonable.

First, while the statute does not

impose a general requirement that a

roving intercept order limit the number

of intrusions permitted, there are

practical constraints which operate to

impose such limits. Electronic [*1294]

surveillance is difficult, labor

intensive, and expensive. The

government’s capacity to utilize it is

finite.

In addition, the Supreme Court has, in

effect, put the government on notice that

the discretion granted by a roving

intercept order should be exercised with

restraint because it has stated that

searches and seizures pursuant to

warrants will be invalidated if they are

executed in an unreasonable manner.

A260

Dalia, 441 U.S. at 257 ("It is generally

left to the discretion of the executing

officers to determine the details of how

best to proceed with the performance of a

search authorized by a warrant -- subject

of course to the general Fourth Amendment

protection ‘against unreasonable searches

and seizures.’") (footnote omitted).

In any event, the Order in this case

contained provisions to minimize the risk

that the roving authority it granted

could be abused. The Order required that

the court be notified in advance of any

surreptitious entry, or as soon as

possible thereafter if prior notice was

not feasible Order, p. 6. This procedure

permitted the judge to revoke or revise

the roving intercept Order if he

perceived that the government was

attempting too many intrusions, or

A261

a, es ee i ae A, ~ 4.

ee Se ee Pe Te ee ee, ee ee eg ee gs eee Mon 8

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" io itiints

seeking interceptions at sensitive

locations such as religious institutions

or political offices. Dalia, 441 U.S. at

258.

In addition, the Order required the

government to file reports every seven

days to show what had occurred and to

seek to establish the need for the

continuation of the roving authority.

Order, p. 7. Thus, the Order provided

regular opportunities for the court to

review, and if appropriate revise or

revoke, the warrant. In addition, the

Order by its terms expired after 30 days,

unless extended pursuant to § 2518(5).

Id. at 5.

As a practical matter, if an Order

Similar to that issued in the instant

case were not obtainable in advance of an

interception, the government would be

A262

—- <1.

encouraged to engage in electronic

surveillance of organized crime without a

warrant when it learned of the location

of an important meeting shortly before it

was scheduled to occur. See §

2518(7)(a)(iii). Such warrantless

surveillance presents a greater risk to

Fourth Amendment rights than the roving

interception authorized here. See Karo,

468 U.S. at 718.

Thus, balancing the foregoing factors,

the court concludes that the search and

seizure authorized by the roving

intercept provisions of Title III, as

implemented by the court’s Order, was

reasonable. Thus, the Fourth Amendment’s

fundamental test has been satisfied.

In addition, that Order also satisfies

that requirements of the warrant clause

of the Fourth Amendment. In this case,

A263

MS A nae oa NON el dS ta i A AIS aOR Se ll be SS ils And a cates nil nae aes

the government obtained a warrant for the

interception defendants now seek to

suppress. That warrant was based upon a

strong showing of probable cause to

believe that the proposed targets of the

electronic surveillance and their alleged

co-conspirators were engaging in the type

of serious crimes which must be involved

to obtain a warrant pursuant to Title

III. See §§ 2516(1)(c) and 2518(1)(b);

Steffens Aff., 11-56. The information

presented to the judge also amply

indicated that there was probable cause

to believe that particular communications

concerning those offenses would be

obtained through the interceptions

authorized. § 2518(3)(b).

In addition, § 2518(11)(a) does not in

any way alter the usual Title III

specification requirement concerning the

A264

"thing to be seized." Title III requires

for both roving and regular electronic

surveillance "details as to the

particular offense that has been, is

being, or is about to be committed [and]

a particular description of the

type of communications sought to be

intercepted." § 2518(1). In this case the

Order used a usual form of specifying

such communications, providing for the

interception of "oral communications made

by, directed to, and/or in the presence

of JOSEPH A. RUSSO, VINCENT M. FERRARA,

and/or ROBERT F. CARROZZA," concerning

the nature and extent of certain gambling

businesses, the use of interstate

facilities in such businesses, the use of

murder, including the murder of William

Grasso, in the conduct of a racketeering

enterprise, and [*1295] the roles of

A265

the targets and others in that

enterprise. Order at p. 3-5. As numerous

courts have found, the pertinent

provisions of Title III satisfy the

Fourth Amendment requirement that the

thing to be seized be particularly

described. See United States v. Gambale,

610 F. Supp. 1515, 1537 (D.Mass. 1985)

aff’d on other grounds sub nom. United

States v. Angiulo, 847 F.2d 956 (lst Cir.

1988), cert. denied, 488 U.S. 928, 109 S.

Ct. 314, 102 L. Ed. 2d 332 (1988); United

States v. Dorfman, 542 F. Supp. 345, 385

n. 41 (N.D. Ill. 1982) (citing cases),

aff’d sub nom. United States v. Williams,

737 F.2d 594 (7th Cir. 1984), [**89]

cert. denied, 470 U.S. 1003, 84 L. Ed. 2d

377, 105 S. Ct. 1354 (1985). This

conclusion is equally apt in the context

of the Order in this case.

A266

as

Defendants most arduously assert,

however, that the roving intercept

provisions of Title III fail to satisfy

the requirement that a warrant

particularly describe the place to be

searched. It should be noted, however,

that the Fourth Amendment does not state

that a warrant must contain an address,

although this is usually included.

Rather, as indicated earlier, the Supreme

Court has found that, "it is enough if

the description is such that the officer

with a search warrant can with reasonable

effort ascertain and identify the place

intended." Steele, 267 U.S. at 503.

"Obviously the primary purpose of this

limitation is to minimize the risk that

officers executing search warrants will

by mistake search a place other than the

place intended by the Magistrate." 2 W.

A267

RS ee a ee ee Cee es ety S eee ey

ne <a y

PN eta ers Ee We, Ss

|

.

LaFave, Search and Seizure § 4.5, at 207

(2d ed. 1987).

Like the other provisions of the

Fourth Amendment, the requirement that

the place or person to be searched be

particularly described has been

interpreted flexibly, depending on the

circumstances. United States v.

Muckenthaler, 584 F.2d 240, 245 (8th Cir.

1978). In Muckenthaler, the government

had probable cause to believe that

several people arriving at an airport on

a particular flight would be delivering

cocaine to a man named Struble. The

government could not, however, ascertain

their names or describe their luggage.

Id. at 245-46. A search warrant was

issued for "those persons or baggage

‘being met’ by Struble." Id.

A268

ap ee, ee, Se

The court analyzed the adequacy of

this warrant, stating:

The constitutional standard for

particularity of description in a

search warrant is met if the

description is sufficiently definite

so as to enable the officer with the

warrant to reasonably ascertain and

identify the place to be searched

and the objects to be seized.

Steele, 267 U.S. at 503-04; United

States v. Davis, 557 F.2d 1239, 1248

(8th Cir.), cert. denied, 434 U.S.

971, 54 L. Ed. 2d 461, 98 S. Ct. 523

(1977); United States v. Johnson,

541 F.2d 1311, 1313 (8th Cir. 1976).

Accordingly, the degree of

specificity is flexible depending

upon the circumstances and the type

of items involved. United States v.

Davis, 542 F.2d 743, 745 (8th Cir.),

cert. denied, 429 U.S. 1004, 50 L.

Bd. 2d 616, 97 8. Ct. 5337 (1976).

The underlying measure of adequacy

in the description is whether, given

the specificity in the warrant, a

violation of personal rights is

likely. Johnson, supra at 1313.

Id. at 245. Applying this standard, the

court in Muckenthaler found the warrant

to be constitutional because it "was as

specific as possible under

circumstances." Id.

A269

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This conclusion is equally applicable

here. As indicated earlier, in contrast

to a conventional Title III warrant, the

roving intercept provision requires

identification of the person committing

the offense and whose conversation is to

be intercepted. Compare §§

2518(11)(a)(ii) and 2518(1)(b)(iv)

(requiring the identity of the person, if

known). Thus, § 2518(11)(a)(ii) provides

for defining the place to be searched as

the location at which an identified

person is discussing specified crimes.

Such a description is constitutionally

sufficient in the context of this case.

Also as indicated earlier, the statute

does not permit an interception until the

"the place where, the communication is to

be intercepted is ascertained." §

2518(12). The Order in this case provided

A270

that no interception was permissible

until Russo, Carrozza or [*1296]

Ferrara was present. Order, p. 6. In

addition, the government was required to

employ standard minimization procedures

to assure that only criminal conversation

was intercepted. § 12518(5).

In this case, and the court expects in

most roving intercept cases, the subjects

of the surveillance had long been under

investigation and were well known to the

FBI. See Steffens Aff. It is, therefore,

unlikely that a mistake would have been

made about whether one of them was

present for a conversation. The FBI also

had considerable information concerning

individuals believed to be the targets’

criminal associates. Id. Thus, while the

exercise of some discretion was required

with regard to the intercept, the

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government could with "reasonable

efforts," Steele, 267 U.S. at 503,

ascertain the place where the targets

were likely to be conducting the criminal

conversations the government was

authorized to intercept.

Similarly, the government could

without significant risk of mistake

identify the locations at which listening

devices would have to be installed.

Indeed, no mistake was made in this case.

Accordingly, the court concludes that

the purpose to be served by the

requirement that the place to be searched

be particularly described was satisfied

by the roving intercept provision as

implemented by the Order in this case.

The customary specification by means of

an address was lacking, but this was

permissible if the judge properly found

A272

that it was impractical to provide this

information and that electronic

surveillance was otherwise justified.

This conclusion represents the

recognition that crime changes in

response to law enforcement efforts to

combat it and the Fourth Amendment "must

be interpreted ’in light of contemporary’

norms and conditions." Steagald, 451 U.S.

at 217 n. 10, (quoting Payton, 445 U.S.

at 591 n. 33). The decisions in Berger

and Katz recognized that warrants for

electronic surveillance could suffice if

they were similar, but not identical to

customary warrants. The Supreme Court has

reiterated and elaborated this principle

of flexibility regarding warrants. Karo,

468 U.S. at 705; Almeida-Sanchez, 413

U.S. at 266; Camara, 387 U.S. at 523. The

roving intercept provision allows a

A273

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departure from the customary description

of the place to be searched when the

usual specificity is shown to be

impractical. In the context of this case

at least, the provision satisfies the

standards of the Fourth Amendment.

This analysis and conclusion is

consistent with the sole district court

decision addressing the constitutionality

of the roving wiretap provision of Title

III, §§ 2518(11)(b). Silberman, 732 F.

Supp. 1057. In Silberman the court

observed that "the purpose of the Fourth

Amendment’s particularity requirement is

to ensure that a search ‘will be

carefully tailored to its justifications,

and will not take on the character of the

wide ranging exploratory searches the

Framers intended to prohibit." Id. at

1061 (citing Maryland v. Garrison, 480

A274

U.S. 79,, 94 L. Ed. 2d Ca, 207 8. CE.

1013 (1987)). The court recognized that

the roving wiretap provision relaxed the

usual specificity of the description of

the places to be searched when a target

was shown to be attempting to evade

detection. Id. at 1062. In these

circumstances, the court found the roving

wiretap provision, in the context of

Title III’s many other protections, to be

constitutional because it "sufficiently

tailors the search it authorizes to its

need." Id. at 1063. This conclusion is

equally applicable to the roving

intercept provision at issue in this

case.

6. Even if the roving intercept

provision is unconstitutional, the good

faith exception to the exclusionary rule

a Sieg Ala ak a

defeats the motion to suppress if the

Warrant in this case was properly

obtained.

As described in Section IV.1 infra,

the judicially crafted exclusionary rule

relating to Fourth Amendment violations

applies to the execution of the roving

intercept Order in this case. This

exclusionary rule now includes an

exception for objectively [*1297]

reasonable reliance by a law enforcement

officer upon a statute, or upon a warrant

if it has been properly obtained.

Illinois v. Krull, 480 U.S. 340, 94 L.

Ed. 2d 364, 107 S. Ct. 1160 (1987);

United States v. Leon, 468 U.S. 897, 82

L. Ed. 2d 677, 104 S. Ct. 3405 (1984).

In the instant case, the FBI

reasonably relied on the validity of the

roving intercept provisions of Title III

A276

and on the warrant received pursuant to

those provisions. Therefore, if the

manner in which the warrant was obtained

does not require suppression, the good

faith exception to~the exclusionary rule

would operate to defeat defendants’

motion to suppress the fruits of the

electronic surveillance at 34 Guild

Street even if the roving intercept

provision of Title III was now deemed

unconstitutional.

In 1984, the Supreme Court decided

United States v. Leon, which explicitly

established a good faith exception to the

judicially crafted exclusionary rule for

Fourth Amendment violations in the

context of law enforcement officers

executing warrants issued based upon

mistaken findings by a magistrate of

probable cause. Leon, 468 U.S. at 913.

A277

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The exception was based in part on the

Supreme Court’s view that:

Particularly when law enforcement

officers have acted in objective

good faith or their transgressions

have been minor, the magnitude of

the benefit conferred on such guilty

defendants [by application of the

exclusionary rule] offends basic

concepts of the criminal justice

system.

Id. at 907-08 (citing Stone v. Powell,

428 U.S. 465, 490, 49 L. Ed. 2d 1067, 96

S. Ct. 3037 (1976)).

In 1987, the Supreme Court extended

the good faith exception to the

exclusionary rule to warrantless searches

based upon statutes later declared

unconstitutional. Krull, 480 U.S. at 349.

Krull involved a warrantless

administrative search of an automobile

wrecking yard pursuant to an Illinois

statute authorizing such searches. Id. at

342-43. The search generated evidence

A278

which the government wished to use in a

criminal prosecution. Id. at 344.

Although the statute at issue was

deciared to violate the Fourth Amendment,

the evidence was not suppressed. Id. at

359-60.

In deciding Krull, the Supreme Court

explained it should be presumed that

legislators act in a constitutional

manner and, therefore, laws should be

accorded a presumption of constitutional

validity. Id. at 351. Thus, “unless a

statute is clearly unconstitutional, an

officer cannot be expected to question

the judgment of the legislature that

passed the law." Id. at 349-50.

However, "a law enforcement officer

[cannot] be said to have acted in good-

faith reliance upon a statute if its

provisions are such that a reasonable

A279

ek en ee eee aa

officer should have known the statute was

unconstitutional." Id. at 355; see Harlow

v. Fitzgerald, 457 U.S. 800, 818, 73 L.

Ed. 2d 396, 102 S. Ct. 2727 (1982).

Moreover, “the standard of reasonableness

is an objective one; the standard

does not turn on the subjective good

faith of the individual officers." Krull,

480 U.S. at 355 (citing Leon, 468 U.S. at

919 n. 20).

As the Supreme Court expressly

recognized in Krull, applying the good

faith exception to the exclusionary rule

to reasonable reliance on statutes is

inconsistent with some of its earlier

rulings, including its decision in

Berger. Id. at 355-56 n. 12. As the Court

stated, however, those cases preceded

Leon. Id. In Krull, the Court indicated

that any prior inconsistent decisions

A280

regarding reliance upon a statute were

effectively overruled. See Krull, 480

U.S. at 364 (O’Connor, J., dissenting).

In this case, the interception of

conversations was authorized by the

Warrant, which was issued pursuant to the

presumptively constitutional provisions

of § 2518(11)(a). The agents’ reliance on

the Warrant and, implicitly, on the

statute was reasonable. The roving

intercept provisions of Title III are not

"clearly unconstitutional." Indeed, this

court finds them to [*1298] be

compatible with the requirements of the

Fourth Amendment. In any event, there

were no cases addressing the

constitutionality of § 2518(11)(a) at the

time the FBI executed the Order in this

case and it certainly cannot be said that

A281

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the agents involved should have known the

statute was unconstitutional.

This, however, is not the end of the

inquiry concerning the issue of

Suppression of the communications

intercepted at 34 Guild Street. As the

Supreme Court explained in Leon, when

warrants are involved, the good faith

exception to the exclusionary rule relies

substantially on the efficacy and

integrity of the warrant process. 468

U.S. at 914. In Leon, the Court again

emphasized the importance of a warrant

generally, stating:

Because a search warrant "provides

the detached scrutiny of a neutral

magistrate, which is a more reliable

safeguard against improper searches

than the hurried judgment of a law

enforcement officer ’engaged in the

often competitive enterprise of

ferreting out crime’" United States

v. Chadwick, 433 U.S. 1, 9, 53 L.

Ed. 2d 538, 97 S. Ct. 2476 (1977)

(quoting Johnson, 333 U.S. at 14), )

[the Court has] expressed a strong |

A282

preference for warrants and declared

that "in a doubtful or marginal case

a search under a warrant may

[**100] be sustainable where

without one it would fail." United

States v. Ventresca, 380 U.S. 102,

106, 13 L. Ed. 2d 684, 85 S. Ct. 741

(1965).

Id. at 913-14.

The Court also plainly indicated,

however, that it is essential that the

judicial officer perform his or her

neutral and detached function of deciding

on a properly informed basis whether a

warrant should issue. Id. at 914.

Therefore, the good faith exception to

the exclusionary rule "does not preclude

inquiry into the knowing and reckless

falsity" of the information furnished by

the government to obtain the warrant. Id.

(citing Franks v. Delaware, 438 U.S. 154,

57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978)).

"Indeed, ‘it would be an unthinkable

imposition upon [the judicial officer’s)

A283

aia hs Wd

Pe ed ak

authority if a warrant affidavit,

revealed after the fact to contain a

deliberately or recklessly false

statement, were to stand beyond

impeachment." Id. at 914 n. 12 (quoting

Franks, 438 U.S. at 165). Accordingly,

"(a) warrant that violates Franks is not

subject to the good faith exception to

the exclusionary rule announced in

[Leon]." United States v. Colkley, 899

F.2d 297, 300 (4th Cir. 1990).

It is, therefore, essential that the

court address the most vexing of the many

challenging issues presented by

defendants’ motion to suppress --the

question whether suppression is required

because the government failed to inform

Judge Nelson of the information it had

received concerning 34 Guild Street.

A284

IV. Suppression On The Basis Of Alleged

Statutory Violations Is Not Justified.

1. Issues relating to 34 Guild Street

must be analyzed under the standards of

Franks v. Delaware.

The issue whether to suppress the

intercepted evidence concerning the Mafia

induction ceremony at 34 Guild Street is

challenging in part because of some

uncertainty concerning the standards to

be utilized in deciding this question. As

set forth below, analysis indicates that

for the provisions of Title III which

address requirements of the Fourth

Amendment, the evolving constitutional

law concerning suppression is applicable.

Section 2518(11)(a)(ii) addresses the

particularity clause of the Fourth

Amendment and, therefore, constitutional

A285

Se See cent

fence tists ab Yow stink ut

standards concerning exclusion apply to

issues relating to it. These standards

include those established by Franks v.

Delaware. As explained in Section IV.2,

infra, suppression is not justified

pursuant to Franks.

As described in Section III.3, supra,

Title III contains certain provisions

intended to implement commands of the

Fourth Amendment. The statute also

includes many other provisions which go

beyond constitutional requirements. Over

time, the distinction between these

provisions [*1299] has come to make a

difference concerning the applicable

exclusionary rules.

18 U.S.C. § 2515 provides that

intercepted oral communications are not

admissible at "any trial, hearing, or

other proceeding . . . if the disclosure

A286

of that information would be in violation

of [TItle III]." A remedy for a violation

of rights established by Title III is

provided by § 2518(10)(a)(i), which

requires suppression if the communication

at issue "was unlawfully intercepted."

See United States v. Mora, 821 F.2d 860,

865 (lst Cir. 1987) ("Congress explicitly

intended that § 2518(10)(a) provide the

remedy for the right created by §

2515.").

When enacted in 1967, §§ 2515 and

2518(10)(a) were not intended "generally

to press the scope of the suppression

role beyond [then] present search and

seizure law." 1968 Leg. Hist. at 2185;

Scott v. United States, 436 U.S. 128,

139, 56 L. Ed. 2d 168, 98 S. Ct. 1717

(1978); United States v. Orozco, 630 F.

Supp. 1418, 1522 n. 9 (S.D. Cal. 1986).

A287

At that time, there was no good faith or

other exception to the judicially crafted

exclusionary rule applicable to

violations of the Fourth Amendment. When

enacted, the primary purpose and effect

of §§ 2515 and 2518(10) was to extend the

exclusionary rule beyond federal criminal

trials to cover federal civil actions,

state criminal and civil proceedings, and

federal and state grand jury proceedings.

1968 Leg. Hist. at 2185 (§ 2518 applies

"across the board in both Federal and

State proceeding"); United States v.

Giordano, 416 U.S. 505, 528 n. 17, 40 L.

Ed. 2d 341, 94 S. Ct. 1820 (1974). It was

expected that, "along with the criminal

and civil remedies {of Title III § 2515]

would serve to guarantee that the

standards [of the statute] will sharply

curtail the unlawful interception of wire

A288

and oral communications." 1968 Leg. Hist.

at 2185; Giordano, 416 U.S. at 514 n. 6.

In 1974, the supreme Court recognized

that Title III included provisions which

enacted in statutory form certain Fourth

Amendment imperatives and also included

additional requirements intended to

impose limits on the use of electronic

surveillance which were not mandated by

the Fourth Amendment. See Giordano, 416

U.S. at 524. In Giordano, the intercepted

evidence at issue was suppressed because

the request for a warrant had been

approved by an official of the Department

of Justice who was not, under the

statute, authorized to act for the

Attorney General with regard to wiretaps.

The statutory requirement that only

certain officials of the Department of

Justice approve requests to seek warrants

A289

;

"

eprteees seek tee

for wiretaps is not based upon any

obligation imposed by the Fourth

Amendment. Consistent with this

understanding, in addressing the question

of suppression, the Court emphasized

that, "the issue does not turn on the

judicially fashioned exclusionary rule

aimed at deterring violations of Fourth

Amendment rights, but upon the provisions

of Title III." Id. Justice Lewis Powell

was more explicit in his concurrence and

dissent, stating that, "to the extent

that the statutory requirements for

issuance of an intercept order are

nonconstitutional in nature, the

exclusionary rule adopted to effectuate

the Fourth Amendment does not pertain to

their violation." Id. at 558. The clear

implication of these remarks is that for

statutory requirements which are

A290

constitutional in nature, the judicially

fashioned exclusionary rule must be

applied.

In Giordano, the Court held that the

words “unlawfully intercepted" were not

limited to constitutional violations and

that:

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 extraordinary

investigative device.

Id. at 527 (emphasis added). In doing so,

the Court in effect found legislative

intent to require suppression without

regard to the government’s good faith or

the absence of prejudice to a defendant

if certain statutory provisions of Title

III not rooted in the requirements of the

Fourth Amendment were not satisfied.

A291

Dae ill as Sa moa

os “

SE aoe Se Sees

GaSe Litany

[*1300] In 1977, the Court again

recognized the distinction between

provisions of Title III which reflect

constitutional commands and those which

are solely legislative in origin.

United States v. Donovan involved the

failure of the government to identify, as

required by § 2518(1)(b)(iv), every

person it had probable cause to believe

would be intercepted in criminal

conversation if a wiretap was authorized.

429 U.S. 413, 97 S. Ct. 658, 50 L. Ed. 2d

652 (1977). The Court noted that, "it is

not a constitutional requirement that all

those likely to be overheard engaging in

incriminating conversations be named."

Id. at 427 n. 15. Thus, the Court found,

"the availability of the suppression

remedy for these statutory, as opposed to

constitutional, violations, .. . turns

A292

on the provisions of Title III rather

than the judicially fashioned

exclusionary rule aimed at deterring

violations of Fourth Amendment rights."

Id. at 432-33 n. 22. In doing so, the

Court clarified that violations of a

constitutional magnitude would be

governed by the judicially fashioned

exclusionary rule.

In Donovan, the Court went on to find

that in contrast to the approval

provisions implicated in Giordano, the

naming provision at issue did not "play

‘a central, or even functional, role in

guarding against unwarranted use of

wiretapping or electronic surveillance.’"

Id. at 437 (quoting United States v.

Chavez, 416 U.S. 562, 578, 40 L. Ed. 2d

380, 94 S. Ct. 1849 (1974)). Thus, the

Court declined to find the interception

A293

"unlawful," because, "in no meaningful

sense can it be said that the presence of

that information as to additional targets

would have precluded judicial

authorization of the intercept." Id. at

436.

The Court in Donovan, however, was

careful to state that it was not called

upon to decide a case in which there was

a suggestion that government agents

knowingly withheld the names at issue

"for the purpose of keeping relevant

information from the District Court that

might have prompted the court to conclude

that probable cause was lacking" and,

therefore, that the warrant should not

issue. Id. at 436 n. 23. Thus, the

Supreme Court suggested that an

intentional effort to withhold material

information might justify suppression.

A294

Similarly, the Supreme Court found it

worthy of note that the defendants in

Donovan were not prejudiced by "their

failure to receive postintercept notice."

Id. at 439 n. 26.

In 1977, the Court of Appeals for the

First Circuit addressed the implications

of a failure to furnish the district

court with the names of individuals

overheard on a wiretap who were entitled

to notice of the interception under §

2518(8)(d). United States v. Harrigan,

557 F.2d 879 (ist Cir. 1977). Following

Donovan, the First Circuit found that §

2518(10)(a) did not require the

suppression of wiretap evidence because

the duty which had been violated was

imposed by a non-central, statutory

provision. Id. at 882.

A295

The Court of Appeals suggested,

however, that the result would be

different if a defendant could

demonstrate incurable prejudice from not

receiving notice. Id. at 884. In

addition, the First Circuit observed that

Donovan left open the question whether

the intentional withholding of

information might justify suppression,

and indicated in dicta that, "suppression

should be required when the statutory

violation arose from a conscious decision

by the federal authorities to violate the

law." [*1301] Thus, in Harrigan,

Tn Harrigan, the First Circuit

cited with approval the Ninth Circuit’s

decision in United States v. Chun, 503

F.2d 533 (9th Cir. 1974). 557 F.2d at

884. In Chun, the Ninth Circuit stated

that in deciding whether suppression was

justified for a violation of a non-

central provision of Title III:

Chavez and Giordano suggest that there

are several important factors which

(continued...)

A296

10( ., .continued)

should be considered. As an initial

matter, it must be determined whether the

particular procedure is a central or

functional safeguard in Title III’s

scheme to prevent abuses. Chavez, supra,

416 U.S. at 578, 94 S. Ct. 1849;

Giordano, supra, 416 U.S. at 516, 94 S.

Ct. 1820. If this test has been met, it

must also be determined whether the

purpose which the particular procedure

was designed to accomplish has been

satisfied in spite of the error. Chavez,

supra, 416 U.S. at 573-574, 94 S. Ct.

1849; Giordano, supra, 416 U.S. at

524-528, 94 S. Ct. 1820. While in most

situations it would not be necessary to

reach beyond the above-mentioned factors,

it may be that in some instances they

will not be completely determinative. In

such cases, Chavez implicitly suggests a

third factor which may have a bearing on

the issue -- i.e. whether the statutory

requirement was deliberately ignored; and

if so whether there was any tactical

advantage to be gained thereby.

Chun, 503 F.2d at 542 (emphasis added).

This test relating to non-central

provisions has also been adopted in

several other Circuits. See United States

v. Caggiano, 667 F.2d 1176, 1179 (5th

Cir. 1982); United States v. Diana, 605

F.2d 1307, 1312 (4th Cir. 1979) cert.

denied, 444 U.S. 1102, 62 L. Ed. 2d 787,

100 S. Ct. 1067 (1980); United States v.

Lawson, 545 F.2d 557, 564 (7th Cir.

(continued...)

A297

the First Circuit suggested that a

deliberate effort to withhold immaterial

information might justify suppression.

Subsequently, District Judge W. Arthur

Garrity, Jr. of Massachusetts, again in

dicta, suggested that a reckless failure

to comply with a non-central provision

might be sufficient to trigger

suppression. United States v. Sullivan,

586 F. Supp. 1314, 1323 (D. Mass. 1984).

The First Circuit has not decided whether

proving reckless disregard is sufficient

to obtain suppression for a violation of

a non-central provision, but has

determined that “mere negligence" is not

1( ...continued)

1975); United States v. Civella, 533 F.2d

1395, 1400-01 (8th cir. 1976), cert.

denied 430 U.S. 905, 51 L. Ed. 2d 581, 97

S. Ct. 1174 (1977); see also Scott v.

United States, 573 F. Supp. 622, 627

(M.D. Tenn. 1983); J. Carr, supra, §

6.3(a), p. 6-71.

A298

enough. United States v. Zannino, 895

F.2d 1, 9 (1st Cir. 1990).

Shortly after Harrigan was decided, in

1978, the Supreme Court found that even

if law enforcement officers failed to

make a good faith effort to comply with

the minimization requirements established

by § 2518(5), suppression was not

appropriate if the facts and

circumstances indicate the agents

reasonably intercepted all calls on a

particular telephone. Scott v. United

States, 436 U.S. 128, 139, 56 L. Ed. 2d

168, 98 S. Ct. 1717 (1978). This

conclusion was based, in part, on the

terms of § 2518(5), in which the use of

the word "conducted" was interpreted as

indicating a legislative intent that the

focus be on the agents’ actions rather

than their motives. Id.

A299

More importantly, at the time Harrigan

was decided in 1977, there had been no

meaningful alteration of the judicially

fashioned exclusionary rule since the

enactment of Title III and, therefore, no

possible distinction between the

standards of that rule and of the

statutory exclusionary rule embodied in §

2518(10)(a). In 1978, however, the

Supreme Court decided Franks v. Delaware.

Although Franks was not a Title III

case, it directly addressed the

circumstances in which evidence should be

suppressed if it were alleged that the

government had presented false

information in an affidavit to persuade a

judge that there was probable cause for

the issuance of a warrant. In Franks, the

Court held that:

In the event that... the

allegation of perjury or reckless

A300

disregard is established by the

defendant by a preponderance of the

evidence, and, with the affidavit’s

false material set to one side, the

affidavit’s remaining content is

insufficient to establish probable

cause, the search warrant must be

voided and the fruits of the search

excluded to the same extent as if

probable cause was lacking on the

face of the affidavit.

Franks, 438 U.S. at 156. The Court,

therefore, established that when Franks

applies a defendant must satisfy two

requirements to obtain suppression based

upon possible governmental misconduct in

connection with obtaining a warrant:

first, that the information at issue was

known by the government to be false or

was presented with reckless disregard for

its truth; and second that the

information was essential to the issuance

of the warrant. By this formulation, the

Court implicitly established a good faith

exception to the judicially fashioned

A301

exclusionary rule applicable to alleged

violations of the Fourth Amendment’s

requirement that a judicial officer

properly find probable cause to issue a

warrant.

In his 1974 concurrence and dissent in

Giordano, Justice Powell foreshadowed the

ruling in Franks and indicated that at

least the second prong of that standard

[*1302] should be applied in

determining the question of suppression

for a violation of a provision of Title

III which implements a constitutional

requirement, such as a finding of

probable cause. More specifically, in

Giordano Justice Powell "agreed with the

majority that the authorization by the

Executive Assistant to the Attorney

General of the application for the

[original] interception order contravened

A302

18 U.S.C. § 2516(1) and that the

statutory remedy is suppression of all

evidence derived from interceptions made

under that order." Giordano, 416 U.S. at

548 (emphasis added). Justice Powell,

however, dissented with regard to the

suppression of evidence obtained as a

result of properly authorized extensions

of the original wiretap because, putting

aside all evidence obtained from the

invalid original wiretap order, the

independent and untainted evidence

submitted to the district court

established probable cause. Id. at 549,

558-61.

Justice Powell’s view in Giordano is

significant in the context of the instant

case because it signaled that the

standards later established by Franks

should be applied to questions of

A303

suppression arising from alleged

violations of provisions of Title III

which enact Fourth Amendment

requirements. This is consistent with the

position which has been adopted by the

Court of Appeals for the First

Circuit.'’ See United States v.

"The issues presented by the motion

to suppress the electronic surveillance

of 34 Guild Street in the instant case

are also being litigated in the District

of Connecticut, where the government

seeks to use the same evidence in the

prosecution of United States v. Bianco,

et al., No. H-90-18. This court believes

that the law as interpreted by the Court

of Appeals for the First Circuit is

likely to be applied to issues relating

to the electronic surveillance of 34

Guild Street which are raised in Bianco

because the conduct in question occurred

within the First Circuit. See United

States v. Gerena, 667 F. Supp. 911

(D.Conn. 1987).

It should be recognized, however, that

courts within the Second Circuit have,

like those in the First Circuit, utilized

the standards of Franks to determine

whether to suppress electronic

surveillance evidence when it is claimed

that a warrant was obtained improperly.

' (continued...)

A304

Southard, 700 F.2d 1 (lst Cir. 1983),

cert. denied, Ferris v. United States,

1(,..continued)

See United States v. Feola, 651 F. Supp.

1068, 1108, 1113 (S.D.N.Y. 1987)

(applying Franks concerning issues

regarding probable cause and exhaustion

of alternative means of investigation)

aff’d, 875 F.2d 857 (2d Cir. 1989), cert.

denied, Marin v. United States, 110 S.

Ct. 110, 107 L. Ed. 2d 72 (1989); United

States v. Tufaro, 593 F. Supp. 476,

485-86 S.D.N.Y. 1983) (applying Franks to

omission of allegedly material fact

concerning probable cause) aff’d, 762

F.2d 991 (2d Cir. 1985), cert. denied,

474 U.S. 826 (1985); United States v.

Ramirez, 602 F. Supp. 783, 788-89

(S.D.N.Y. 1985).

Franks has also been applied in Title

III cases in other Circuits. See e.g.,

United States v. Garcia, 785 F.2d 214,

222 (8th Cir. 1986); United States v.

Leisure, 844 F.2d 1347, 1357 (8th Cir.

1988); United States v. Ippolito, 774

F.2d 1482, 1485 (9th Cir. 1985); United

States v. Brooklier, 685 F.2d 1208, 1221

(9th Cir. 1982) (per curiam), cert.

denied 459 U.S. 1206, 75 L. Ed. 2d 439,

103 S. Ct. 1194 (1983). United States v.

Marcello, 508 F. Supp. 586, 603-06

(E.D.La. 1981), aff’d sub nom. United

States v. Roemer, 703 F.2d 805 (5th

Cir.), cert. denied, 464 U.S. 935 (1983);

J. Carr., supra § 6.2(dc)(1)(A), p. 6-56

("The Franks standard applies to Title

III applications and orders.").

A305

464 U.S. 823, 78 L. Ed. 2d 97, 104 8. Ct.

89 (1983). |

In Southard, the defendants alleged

that a government affidavit submitted to

obtain a wiretap falsely stated that

informant information established

probable cause to believe criminal

conversations would be captured. Id. at

7. The Court of Appeals applied the

Franks standard to analyze defendants’

Claim. Id. at 7-10. The motion to

suppress was denied because the court

found an allegedly false statement

concerning unidentified callers to be

true, id. at 9, and appellants failed to

make the substantial preliminary showing

with regard to allegedly false statements

relating to informants which was

necessary to obtain an evidentiary

A306 \

hearing, let alone prove bad faith. Id.

at 10.

As described earlier, following the

decision in Southard, in 1984, the

Supreme Court decided Leon. Leon

explicitly established a good faith

exception to the judicially crafted

exclusionary rule for Fourth Amendment

violations and expressly anticipated

reliance on Franks when challenges are

made to an application and affidavit

[*1303] seeking a warrant. Leon, 468

U.S. at 914.

As a result of Franks and Leon, by

1984 there had been considerable

evolution of the judicially crafted

exclusionary rule applicable to Fourth

Amendment violations since the enactment

of the statutory exclusionary rule in

1967 as part of Title III. Thus, a

A307

question was presented whether the

current constitutional exclusionary rule

or the 1967 standards would be applied in

particular Title III cases.

In 1984, shortly after Leon was

decided, the Court of Appeals for the

First Circuit indicated again that the

current constitutional exclusionary rule

standards apply to at least some Title

III cases, including those in which the

issue is whether a warrant was properly

obtained. United States v. Mastroianni,

749 F.2d 900, 909 (1st Cir. 1984).

Mastroianni involved an alleged

misrepresentation in a state wiretap

application pursuant to a Massachusetts

statute that paralleled § 2518(c), which

requires that an application for a

warrant contain a full and complete

statement of why other investigative

A308

techniques had faiied or were not likely

to succeed. Id. at 908; see Mass. Gen.

Laws Ann. ch. 272, § 99(E)(3) (West

1990). More specifically, although a

member of the conspiracy being

investigated had agreed to cooperate five

days earlier, the affiant stated that "as

of this date efforts to successfully

penetrate this organization and other

investigative techniques have failed."

Mastroianni, 749 F.2d at 908.

As indicated earlier, the "necessity"

requirement of § 2518(1)(c) is rooted in

the Fourth Amendment requirement that

searches be reasonable and in the

statements in Berger and Katz that courts

should authorize "no greater invasion of

privacy .. . than necessary under the

circumstances." Berger, 388 U.S. at 57;

Katz, 389 U.S. at 355. In analyzing a

A309

violation of the comparable necessity

provision of the state statute, the Court

of Appeals for the First Circuit emp] »yed

the Franks test to determine whether the

wiretap evidence at issue ought to be

suppressed. Mastroianni 749 F.2d at 909.

The court in Mastroianni stated that

it had "serious reservations about

whether a magistrate would have approved

the wiretap application when he did if he

had been aware of [the informant’s]

apparent decision to cooperate." Id. at

909 n. 6. The evidence was not excluded,

however, because the information

concerning the cooperating individual

was relatively recent, had not been

communicated to the affiant, and

therefore the s.atement at issue was not

shown te have been made "with knowledge

of its falsity or with reckless disregard

A310

for the truth." Id. at 909. Thus, the

First Circuit relied on the good faith

prong of the Franks test to deny

suppression in a case where the warrant

would apparently not have issued, and the

defendant would not have been

intercepted, if the issuing magistrate

had been fully informed.

In 1986, the Court of Appeals for the

First Circuit again applied the Franks

standard in the context of deciding a

motion to suppress for an alleged

violation of the statutory requirement of

§ 2518(1)(c) that the government make a

full and compylet# statement regarding the

efficacy of other investiyatory

techniques in order to show that a

wiretap is necessary. United States v.

Cole, 807 F.2d 262, 267 (1st Cir. 1986),

cert. denied, 481 U.S. 1069, 95 L. Ed. 2d

A311

870, 107 S. Ct. 2461 (1987). In Cole, the

government failed to inform the court

that one of its investigators was having

an affair with a co-defe: dant and thus

\

After a hearing, the district court held

had access to certain information. ~ Id.

that the second prong of tie Franks test

was not satisfied, finding that the

omitted information was not material

because the warrant would "necessarily,

nevertheless, have issued" even if that

information had been disclosed to the

issuing judge. Id. at 268. The First

Circuit affirmed this result. Id. Thus,

Cole serves to re-emphasize that the

Court of Appeals for the First Circuit

believes Franks is applicable when it is

alleged that provisions of Title III

which reflect constitutional requirements

A312

have been violated in the process of

obtaining a warrant.

[*1304] In 1986, Title III was

amended in a manner which again

recognizes that there is a distinction

between violations of constitutional and

non-constitutional provisions of that

statute, and between the exclusionary

rules applicable to each. To respond to

the development of new technology,

Congress in 1986 amended Title III to

cover electronic as well as wire and oral

communications. In doing so, §

2518(10)(c) was added to the statute. It

provides:

The remedies and sanctions described

in this chapter with respect to the

interception of electronic

communications are the only judicial

remedies and sanctions for

nonconstitutional violations of this

chapter involving such

communications. (emphasis added).

A313

The "remedies and sanctions" in Title III

include § 10(a), which was not explicitly

amended to cover electronic as well as

oral and wire communications.

The reference in § 10(c) to

"unconstitutional" violations indicates

it is the contemporary understanding of

Congress and the President that the

judicially crafted exclusionary rule

governs conduct which violates both the

Fourth Amendment and the provisions of

Title III which implement its

requirements. The legislative history

reinforces this view. The House Report

states:

In the event that there is a

violation of law of a constitutional

magnitude the court involved ina

subsequent criminal trial will apply

the existing constitutional law with

respect to the exclusionary rule.

Mapp v. Ohio, 367 U.S. 643, 652, 6

L. Ed. 2d 1081, 81 S. Ct. 1684

(1961); Massachusetts v. Shepperd,

468 U.S. 981, 104 S. Ct. 3424, 82 L.

A314

Ed. 2d 737 (1984); United States v.

Leon, 468 U.S. 897, 104 S. Ct. 3405,

82 L. Ed. 2d 677 (1984).

H. R. No. 99-647, 99th Cong., 2d. Sess.,

48 (1986); 1986 Leg. Hist. at 3577.

Section 10(c) has been viewed as

clarifying that for oral, wire, and

electronic communications "Congress has

incorporated the good faith exception for

violations of a constitutional

magnitude." J. Carr, supra, § 6.3A, Dp.

6-84.2 (1990). To the extent that this

observation includes the principles of

Franks on which Leon expressly relied,

this court concurs.”

phe Court of Appeals for the

Second Circuit has also recognized in

dicta that Fourth Amendment suppression

analysis may be applicable to questions

arising under § 2518(10)(a). See United

States v. Ojeda Rios, 875 F.2d 17, 23

(2d. Cir. 1989), vacated on other

grounds, 495 U.S. 257, 110 S. Ct. 1845,

109 L. Ed. 2d 224 (1990).

A315

As described previously, in 1987, the

Supreme Court decided Krull, which

reaffirmed and extended to reliance on a

statute the good faith exception to the

exclusionary rule enunciated in Leon.

Krull, 480 U.S. at 341. Since then, the

Court of Appeals for the First Circuit

has in dicta again indicated that the

Franks standard is applicable when a

court is faced with allegations of

factual inadequacies or

misrepresentations in an application for

a warrant under Title III. United States

v. Ashley, 876 F.2d 1069, 1073 (1st Cir.

1989).

The roving intercept provision of

Title III, § 2518(11)(a)(ii) relaxes the

statutory requirements of §§

2518(1)(b)(ii) and (3)(d) concerning the

place where interceptions will occur. As

indicated earlier, the modified

provisions were intended to address the

constitutionai commands of

particularization as they were stated in

Berger and Katz.

Accordingly, defendants’ motion to

suppress the evidence of the Mafia

induction ceremony intercepted at 34

Guild Street relates to provisions of

Title III which reflect constitutional

requirements and must be analyzed

pursuant to the constitutional

exclusionary rule -- more specifically,

pursuant to Franks. Cole, 801 F.2d 262;

Mastroianni, 749 F.2d 900; Southard, 700

¥.26 2.

Franks applies to omissions from an

application or affidavit, as well as to

affirmative misrepresentations. United

States v. Hadfield, 918 F.2d 987, 993

A317

(lst Cir. 1990); Cole, 807 F.2d at

267-68; United States v. Colkley, 899

F.2d 297, 300 (4th Cir. 1990).

The instant case in essence involves

omissions, although certain uncorrected

representations in Steffens’ Affidavit

[*1305] constituted misstatements. In

order to obtain suppression, defendants

must show by a preponderance of the

evidence both that: (1) facts were

omitted "’with the intent to make, or in

reckless disregard of whether they

thereby made, the [application and]

affidavit misleading,’" Colkley, 899 F.2d

at 300 (quoting United States v. Reivich,

793 F.2d 957, 961 (8th Cir. 1986)); and

(2) that such omitted facts were

material. Franks, 438 U.S. at 156; United

States v. Melvin, 596 F.2d 492, 499-500

(lst Cir. 1979), cert. denied, 444 U.S.

837, 62 L. Ed. 2d 48, 100 S. «tt. 73

(1979); Mastroianni, 749 F.2d at 909;

Southard, 700 F.2d at 9-10; Cole, 807

F.2d at 268; United States v. Ippolito,

774 F.2d 1482, 1485 (9th Cir. 1985)

("False statements that are material in

causing the warrant to issue will

invalidate it.").

With regard to the first prong of the

Franks test, "Franks protects against

omissions that are designed to mislead,

or that are made in reckless disregard of

whether they would mislead" a judge.

Colkely, 899 F.2d at 301 (emphasis in

original). Mere negligence is not enough.

Id.

With regard to the second prong of the

Franks test, the information must be

material to the issuance of the warrant.

As the parties and the court agree,

A319

materiality should be evaluated by an

objective standard and from the

perspective of a reasonable judge.

In this context, the Court of Appeals

for the First Circuit has indicated that

information is not "material" if a

warrant would "necessarily, nevertheless,

have issued" if the information had been

accurately and completely disclosed.

Cole, 807 F.2d at 268; see also United

States v. LaRouche Campaign, 695 F. Supp.

1290, 1305 (D. Mass. 1988) aff’d, 866

F.2d 512 (lst Cir. 1989); United States

v. Ippolito, 774 F.2d 1482, 1486, 1487

(9th cir. 1985) (If a reasonable district

judge "could have denied" the application

if fully informed, the information is

material; but if the omitted information

or misstatement "would have no effect" on

the issuance of a warrant, it is

A320

immaterial.); United States v. Sobamowo,

892 F.2d 90, 93-94 (D.C. Cir. 1989)

(suppression denied because of "no cause

to believe" that omitted information "if

known to the district judge, would have

altered the district court’s

determination" to issue the warrant)

cert. denied, 111 S. Ct. 78 (1990);

United States v. Massino, 657 F. Supp.

101, 107 (S.D.N.Y. 1987) ("Suppression is

mandated if, with the additional

information, the issuing judge would not

have found the requisite elements . . .")

Thus, this court understands "material

information" to be information which

reasonably might have prompted a district

judge being asked to issue the warrant to

have denied the request. If a reasonable

judge either might or might not have

A321

authorized the requested electronic

Surveillance if fully informed, the

information at issue is material, and its

omission requires suppression. If,

however, a reasonable judge would have

authorized the electronic surveillance

anyway, suppression is not appropriate.

The government contends that this

formulation of "materiality" is more

favorable to the defendants than the

standard established by Franks. See

Government’s Supplemental Memorandum of

Law Concerning Title 18, United States

Code, Section 2518(11)(a)(ii) filed March

18, 1991. The government asserts that

"the defendant has the burden of showing

that if the information at issue had not

been omitted from the supporting

affidavit, the issuing court’s

A322

determination would necessarily have been

different." Id. at 7 (emphasis added).

The government’s position is based in

part on the language in Franks *!ating

that a defendant must prove by a

preponderance of the evidence that "with

the affidavit’s false material set to one

side, the affidavit’s remaining content

is insufficient to establish" a proper

basis for issuing the warrant. 438 U.S.

at 156." In Colkley, the Fourth

The government also relies in part

on the language in Franks concerning

presumed validity of an affidavit

supporting a request for a search

warrant. 438 U.S. at 172. This reliance,

however, is misplaced. Franks indicates

it is appropriate to presume an affidavit

is valid for the purposes of deciding

whether a defendant has made a

sufficiently specific challenge to its

truth to obtain an evidentiary hearing.

Where, however, it is shown that there

are misstatements or omissions concerning

an affidavit, Franks does not suggest

these imperfections should be presumed to

be immaterial.

A323

Circuit described [*1306] the

implications of this element of the

Franks test as follows:

The district court misstated the

type of materality that Franks

requires. It believed that the

affiant’s omission was material

because it "may have affected the

outcome" of the probable cause

determination. However, to be

material under Franks, an omission

must do more than potentially affect

the probable cause determination: it

must be “necessary to the finding of

probable cause." Franks, 438 U.S. at

156, 98 S. Ct. at 2676. For an

omission to serve as the basis for a

hearing under Franks, it must be

such that its inclusion in the

affidavit would defeat probable

cause for arrest. See Reivich, 793

F.2d at 961. Omitted information

that is

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