# Appendix — Bianco v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1216%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1069 ## Text 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. A130 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 A131 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. A132 (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. A133 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 A134 "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 SS See ee ee TA SO a ee Pe ae ee ee ~~ Del de = ~! pe tel i nde ene cs it RE Ba 2 eee SI ea toss i che ll aes lar ih phir see teeth 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 4 ; ; | ; i eee Petit He 2-5 7 ae ee Bae RIE Oe ee 1 tii 8 mE San lt — - Me, v4 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 A Larne! A ia et ks ate tatoo NAIA NP naa PME hd cia, eA Be alin nat OR eRe: a " 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 —- t a 4 A 7 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 ry —_— 1”. |e. ener a * eee ey ee ee ee oe : s Alle A ele Nn HE RR RAD > he ae oa tla aie Bae ht AN Mle Ew hed 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 biased itesE Ei OE eek to Akeae A e ons Cae A ati eet nl em Re tt ange Fg to a, ge eae en ira ae & : a a . 3 i Eh we, Se Se RRR woe etc: Saal th te ts bon DAS UI hee RS Mat eb nid a iL = 9 A ‘ 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 . @ Pa ¥ bow) 4 4 Ag > 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 x 3 ¥ ‘ § EM : roo 4 a om h: q . © % é Li a 4 > Be # & ¢ » ‘ & c% . pty ich ted tleamepe Se 3 ay k Wik wikthetde tenis Yio! 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 exclusio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1216%3A2. Public record. Not legal advice.