# Petition for Writ of Certiorari — United States v. United States Dist. Court for Eastern Dist. of Mich. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0043%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 407 U.S. 297 ## Text x the Sagi dint Cf the tite Stas 4 | OaroBER TerM, 1970 a a) . : Usrrep Srares or AMERICA, PEITTIONER ia : @. . Usrren Srares Districr Court : Yor THE Kasten’ ‘District oF. MICHIGAN, SOUTHERN | Division AND Hon, Damon d. ket * PEITTION FOR A WRIT OF CERTIORARI 10 THE UNITED STATES 4 _ COURT OF APPEALS FOR THE = CIRCUIT The - Solicitor Genskut on behalf of the United ; States, of America, petitions for a writ .of certiorari ‘to review the judgment of the United States Court . of Appeals. for the Sixth Cireuit in this « case. SA OPINIONS BELOW The opinion of the court of appeals (App. A, -in- fra) is not yet reported. The opinion of the district court pide: B, pemiren is not reported. JURISDICTION On April 8, 1971, the Court ‘of Appeals denied. the ‘government’ S. petition for. a writ of mandamus seek- ‘ing: to compel the respondent district judge to vacate ~ Qa Te ee . aly 423-955-711. Y ; 2 wed - % celia order. entered in a pending sabia Case, . The judgment of the court, of appeals is set forth in | _ App. C, infra. The jurisdiction of this Court i is invoked - : under 28 US, C. 1254(1). _ QUESTIONS PRESENTED. 1. Whether electronic surveillance ‘is webiniible within the meaning of the Fourth Amendment when it _ Z ~ has been specifically authorized by the President, act- , \- ing through the Attorney General, to gather intelli- \.._ gence information deemed neséssary to protect against . \ attempts to gverthrow the government by force or other . unlawful means or against other clear and Paes dan- gets to the government’s structure or existence. 2.\If such national security" surveillances are ie ; lawful) whether—notwithstanding Alderman v. United © States, 394 U.S. 165—it would be appropriate for the . district court to determine in camera whether the in-\ _ terceptions a re arguably relevant to the prosecution \ before requiri their. disclosure to the son eae , \ \ STATUTE INVOLVED . The pertinent provisions of the Omnibus Oriine Con- / trol and Safe Streets Act of 1968 are set forth in App. : oh D, infra. re \ : : STATEMENT — ie } This petition | arises from_a ¢rimina} vied pending trial in the United States District Court for — . ‘the Eastern District of Michigan, i in which the three de- fendants are charged, with conspiracy to destroy gov- ernment property in violation of*18 U.S.C. 371, and _ one of -the defendants, Plamondon,. is ehargéd with destruction - of gove®ament “property \in violation of 18 US.C. 1361. The charges. arose from the bombing of an office of the Central Bec my Agency i in Ann Arbor, — ae 3 ‘ In the course of pretrial proceedings, the defend- ° .- ants filed a motion for disclosure of electronic surveil-. lance information. ‘With its response, the government. . _ fled and served upon the movants an affidavit of the Attorney General of the United States, acknowledg- ing that government agents had overheard conversa- tions participated in by Plamondon; it also filed the - logs of these surveillances as-a sealed exhibit.” : The Attorney General’ s affidavit: réads as follows: JOHN N. ‘Mrrenenz, being duly. sworn deposes: : and says: : ~ 1. f am the Attorney General of the United WS States. : Pee 601%: 2. This- affidavit. is sulenithed in connection ees with the Government’s opposition: to the dis-. closure to the defendant Plamondon of ‘infor; - mation concerning the ov erhearing of his con- | . versations which occurred during the.course of - .. electronic surveillances which the Government. contends were legal. . : 3. The defendant Plamondon_ has partici- ee pated in cpnversations. which were overheard - -by. Government: agénts ‘who were monitoring “wireta ich were being employed to gather — intelligence ° information ' “deemed necessary to protect the nation from attempts of domestic 3 organizations to attack and‘subvert the exist- _ ing structure of the Government. The records 4 : a e o- ere v= . : : "e ies af . by "ape . ° ? . rs . 7 * . . ia) . we be . . ‘ : , OPE I Bg SE a SEROW NER SA, Le arie a! ome Yarn dntet a tee ras Gl LS PCN PIRI EN er EE IR ace YS apy he Sandy iii i order. The court of siaheall denied the petition. It igreed. ‘Ty that the case was an appropriate one for mandamus, since the ‘order was not appealable and raised: “[g]reat | issues ** * for all parties. concerned” that were of first | impression in any appellate court. (App. A,: infra, °p -15).* It held, however. (by a two-to-one vote), that the district court had properly found the surveillances'un- - law ful under the: Fourth Amendment, and had prop-. erly required their-disclosure. The court further Te- jected the government’s alternative argument that even | it the surveillances were illegal the special circum- stances of this case made appropriate ah in camera de- = termination, yithout. disclosure to the defendant, that ‘the conversations intercepted were 8 wholly irrelevant - ae ~ prosecution. ae , ae REASONS FOR GRANTING THE WRIT 1. The: issue .of the President’ S authority to. order — warrantless electronic surveillance ji in national security _ cases. is plainly en issue of national importance that warrants this Court’s consideration: Its determination _ is required bgth for the guidance of the lower federal courts in theeonduct of criminal prosecutions and for’ the guidance of the executive i in carrying out its obli- alles to utilize all lawful measures«-and. only those ~ measures‘that are laivful—in ‘the protection of the na---- tional security both th internationally-and domestically. o—Presitentially : author ized surveillance i in national se- + eiity cases baa setae judicial sanction has — * The court voted the government’s representation, that affirm. * ance ,of the disclosure order would force the dismissal of the . prosecution against Plamondon. Jbid. |. ~ | as ig 2». — an ene P ; been undertaken by successive Presidents over a pe riod of thirty years,’ and was given explicit recogni- tion by Congress in the Omnibus Crime Control and ‘Safe Streets Act of 1968, 82 Stat. 197, 18 U.S.C. (Supp. NV) 2511(3). This well established practice was thought to be a proper exercise of Presidential: power, lawful under the Fourth Amendment. The court below, in the first appellate consideration of this question, held to ‘the contrary, as did Judge Keith ‘in the district. court. One district. court has agreed, United States v. Smith, 321 F. Supp. 424 (C.D. Calif.); but two. district courts have upheld the power, United States v. Dellinger, et al.,. Criminal No. 69-180, N.D. Ill, ED., decided February- 20, 1970; U nited States v. O’Neal, Criminal No. KC-CR 1204, D. Kan., decided September 1, 1970.4 = This Court has specifically left undecided “Tw heth- er _Safeguar ds other than prior authorization by a magistrate would satisfy the: Fourth Amendment ‘i ". a“situation involving the national security * * aN Katz v. United States, 389.U.S. 347, 358 n. 23; see Giordano v. United States, 394° Us. S. 310, 313, 314 This issue should now be considered by this Court. . _ «The Fourth Amendment does not forbid all seizures without ’ a warrant. There 1 is no constitutional require ’ See the orders of Presidetts Roosevelt, Truman and Johnson, | set forth as Appendices to the Spinion « of the court of —— (App. A, infra, pp. 44-48). '*The Dellinger decision is pending on appeal to the Court of Appeals for the-Seventh Circuit. The government has jeti- ‘tioned for a writ of, mandamus’ in the Court of Appeals for | the Ninth Circuit seeking vacation of the order in the. Smith _ ease. The O’Neal case has not been-appealed; the defendant. : has fled the jurisdiction. ( a’ 7 ment that thére must always be judicial intervention before a search and seizure can be made: The €onstitu- : tion forbids only “unreasonable” searches and seizures; and the use of that word obviously implies some flexi- bility. The scope of the flexibility i is subject to judicial _ . supervision, but the particular seizure need not be. In. the present case, power auxiliary to the responsibilities + . of the President, our Chief Magistrate, and by him ex- ~ °° pressly. delegated to the Attorney General, for whom the _ President is responsible, provides the basis for reason- ’ abléness specified by the Constitution? — : The presidential power relied.on to make lawful the | surveillance in this case is narrowly defined and limited by strict procedural safeguards. First, the area of “na- — tional security’’ is limited by the Omnibus Crime Con- ~ trol and Safe Streets Act of 1968 to five particular gov- ernmental concerns: (1) protection against actual or _ potential attack or other hostile acts of a foreign power; - (2). gathering of foreign intelligence information - deemed essential to the security of the United States; (3) protection of national security information against _ _ foreign. intelligence activities ; (4) protection against . the overthrow of the government by force or other un-— lawful means; and :(5) protection against any other . clear and present danger to the structure’or existence of the government (see Appendix D, infra).’ As the At- torney General’s affidavit indicates (pp. 3-4, supra) the - ‘*The Court of Aviad for the Fifth Circuit recently indi- . cated that. it did not consider a warrantless national security _ surveillance, limited exclusively to: foreign intelligence informa- tion, constitutionally defective. United States v. Clay, 430 F. _ _ 2d 165. This Court’s limited grant of certiorari in that case, 6-400 US. 990, did not disturb this he holding. | 8 _o surveillance in this case-was based primarily upon the - last two of these concerns; of course, these condgrns may _ frequently tend to. merge with the first.three, sinte the: , line between domestic activity and foreign intelligence is often blurred, or merged. It is also important that. such electronic. surveillance is aiithorized only by the ; Attorney General—and no other official—acting on be- _ half. of the President. .. " Thus, the issue is whether, i in. the areas defined above, | the standard of reasonableness specified by the Fourth . .Amendment allows the judgment of the President’s q -. chief law enforcement officer—who is directly account- ; ae able to the President and through him to the elector ate— to be relied upon in this narrow and important area of national security in lieu of the judgment of the numer-- * ous judges ‘and magistrates who may “happen to bave juris: i diction in the locality where a warrant might be sought. 2. If national secur ity. surveillances of the kind here - involved are at variance with. the Fourth Amendment, then we suggest that this Court. should reconsider ~ what procedures. are appropriate and necessary: to © + assure that a particular criminal prosecution is not |,» tainted by them. The automatic disclosure require. | ment seemingly established by Alderman v. United . States, 394 U.S. 165, for every situation of unlawful interception of a defendant’s voice—which Was ap- plied’ below—is,.we suggest, inappropriate and uninec- essary in a case such a’ the present one. We urge the Court. to consider again whether the district courts shouldbe permitted to screen such national security interceptions in camera to-determine whether they are. . _ arguably relevant to the prosecution before directing ARR INEGNLIE SataeiNGls., 8a _ that they 1 be disélosed to the defendant, withholding those that the court can satisfy itself are not arguably relevant. Cf. Laglianetti v. United States, 394 US. - 316. This is, we submit, an adequate protection of the defendant’ s Fourth Amendment rights, and it is nec- ~ essar y to relieve the gov ernment of the dilemma of ~ either dropping a prosecution of a serious criminal offense (as here) or revealing information damaging to the national security. y CON CLUSION For the 1 reasons stated, it is respectfully submitted - that: the petition for a writ of certiorari should be a mo ; Frwy N. -Grisw OLD, _ Solicitor General, _ Ropert C. Marpian, . | Assistant Attorney General. Wm. TERRY Bray, -. Assistant to the_Solicitor General. Rosert L, Kevcu,. . _ GEORGE W. CaLioun, a ee, . Attorneys, May 1971, | | ” « | 48-855—1--2 2 _ APPENDIX A * aoa UNITED STATES COURT*OF APPEALS FOR pe ‘THE SIXTH CIRCUIT | _ (No. 71-1105—Decided and Filed April 8, 1971.) | (ON PerITIoN FOR WRIT OF Manpamus). _ Unrrep States oF AMERICA, PETITIONER. . > Unitep States District Court For THE Eastern D1s-— -TRICT OF MicHIGAN, SouTHERN Division anp Hon- ORABLE Da Mon J. KEITH, RESPONDENT - _ Before Puituies; Chief J nde, WEIcK and Epwarps, aa | _ Cireuit Judges ae Epwarps, Circuit Judgé. At issue in this ease is the _ power of the Attorney General of the United States — as agent of the Presidént to-authorize wiretapping in internal security matters without judicial sanction. This ease has importance far beyond its facts or the | _ litigants concerned. eon See _ If deeided in favor of the government, the citizens - of these United States lose the protection of an inde- pendent judicial review of the cause and’ reasonable-- ness of secret recordation by federal law enforcement. - of thoughts and expressions which had been uttered in " privacy. If it is decided in favor of the respondent, _ it may prejudice an important criminal prosecution. _ And more important, of course, in all future surveil- _ lances undertaken in internal security matters, it may ao ee 2 A ‘add at least. some dimension of risk of exposure of. - federal investigatorial intentions. — | The background of this case is the pending trial in “the United States District Court for the Eastern Dis- trict of Michigan in Detroit of three young men for conspiracy ‘to destroy government property. in Ann _* Arbor, Michigan, in violation of 18 U.S.C. 6371 . (1964). One of them named Plamondon. was. also - charged with destruction of government property ina value exceeding $100, in violation of 18 U.S.C. § 1361 (1964). The particular case before.us is a petition for writ of mandamus filed originally inthis court by the United States to compel the District Judge who is _presiding at the Detroit trial to vacate an order direct- ing the United States to “make. full disclosure to de féndant Plamondon of his monitored conversations,” _ STATEMENT OF FACTS For purposes of this case, we accept the statement - of ‘facts from the petition filed by the United States: | On December 7, 1969, defendants in the court below were indicted by a Federal Grand Jury for: destruction of Government property in violation of 18 ea 1361. In the course of the pre-trial proceedings, defendants filed a motion for dis- | closure of certain electronic surveillance inform- _ ation. That motion was granted by respondent, _ and. petitioner has been ordered by respondent to disclose the information sought. Respondent’s _ Order is the subject of this petition. - : On October 5, 1970, defendants filed a “Mo- tion for Disclosure of Electronic or other Sur- veillance, For a Pretrial Héaring, To Suppress ' Evidence and to Dismiss the Indictment.”’ * *'* eaeee. On December 18, 1970, petitioner filed, in re *" * "". sponse, an opposition to defendants’ motion. By - . way of: an affidavit of the Attorney General - ee 7 ° * oe » DF IAAL eA 8 Hg SO gael Ot Pe ea oN aehipe wm ¢ | , Me ay - i - of the United States, John N. Mitchell, which _ was attached to petitioner’s opposition, peti- tioner,acknowledged that one of the defendants, Lawrence Robert “Pun’’ Plamondon, had par- « _ ticipated in conversations which were overheard - _ by. government agents.’ The logs of these sur- veillances were given to respondent in the form of a sealed exhibit for respondent’s in camera inspection only and are available to this Court on those terms as well. , | Por s icy , Oral argument was had beforé. respondent . _.. on January 16, 1971;-on January 25, 1971, re-_ ‘spondent, holding that the surveillance was ille- gal, granted ‘defendants’ motion and ordered petitioner ‘to disclose the information sought. Respondent then granted petitioner a 48-hour - . _ stay which ‘was, in. turn, extendéd to and in- ~ cluding February 9, 1971, to afford petitioner an oppoytunity to. present this matter to this To this statement of facts the United-States.also-at- '-tached-the affidavit of. Attorney General Mitechell—the ~ full context of which follows: ~ -. . - “JoHN N.’ MitcHELL being duly sworn de- poses and says: =. ieee. tan: Pe _ “1. I am the Attorney General of the United ae ao pA gape eee, | _“* Tt is important to note at this point that although he was ‘overheard, defendant Plamondon was not the object of the sur-- " ‘veillance. This distinction: apparently went unnoticed by re- _ Spondent for he stated in his decision ordering disclosure that mt a the Attorney General, ‘had authorized and deemed necessary the wire tapping of cértain of defendant Plamondon’s conver- oe? hg AGS DRE 7 it Coes “The sealed exhibit submitted to the court below will quickly demonstrate that defendant Plamondon was not the object of -— the gurveillance, and petitioffer respectfully refers this Court's ‘attention to that exhibit and the additional sealed exhibit being made availabléto the Court for the grounds and objectives of” the Attorney General’s authorization.” (Footnote in quotation.) - view this matter.” @ 2. This affidavit is submitted in connection _' with the Goverriment’s. opposition. to the dis. “closure to the defendant Plamondon of infor. -Mation concerning thé overhearing of his con- versations which. occurred during the course of electronic surveillances which the Government contends were legal. = “3. The defendant Plamondon has partici- pated in conversations, which were overheard by Government age who were monitoring wiretaps which were being employéd to gather _intelligence. information. deemed ‘necessary to protect the nation from attempts of doméstic organizations to attack and subvert the existing structure of. the Government. The records of the Department of Justice reflect the -installa- _tidn of these wiretaps.had been expressly ap ¢ proved by the Attorney Generali = ss: . “4, Submitted with this affidavit is a sealed exhibit containing. the records of*the inter- cepted conversations, a description of the prem- ‘ises that were the subjects of the surveillance, and copies of the memoranda reflecting the At- torney General’s express approval of the instal- lation of the surveillances.. - = = >. - “OS. I eertify that it -would . préjudice: thie national interest to disclose the particular facts concerning these-surveillances other .than to the - court tn camera. Accordingly, the sealed exhibit referred to herein is being submitted solely: for. the court’s in camera inspection and a copy of - the sealed exhibit is not being furnished to the. defendants. I -would request: the court, at the’ 2 conclusion of its hearing on this matter, to place ‘the sealed exhibit in a sealed envelope and return it to the Department. of Justice where it will be retained under seal so that it.may be submitted to any appellate court that: may re fe i This court stayed the order of the District. Court’ pending hearing and final disposition of the petition ee for writ of mandamus: , From the ite oats statement of. facts, it ap- pears that the exact question this court must answer is: Where the Attorney General determines that ¢ertain ‘wiretaps: are “necessary to protect thé nation from. ° attempts of omestic organizations to-attack and sub-’ vert the existing structiire of the government,” does . his authorization rende? such wiretaps lawful without- . judicial review 2 "i 3 THE MANDAMUS QUESTION. é Preliminary to answering this “questjon, there is a ~ challenge to-our jurisdictien. It is claimed ‘that man- damus is' not an appropriate form of action in which to review: the question: just.posed in the céntext of: ' /*the instant case. It is clear that the District Court .. order under attack is a pretrial order, interlocutory » in nature, and hence, not appealable under-28 U.S.C. §1291 (1964) which conveys ‘appellate power to this court to review only “final” orders of the District ‘Courts. Cogen v. United States, 278 U.S. 221 (1929). Nor is the order here under attack subject to appeal ' under 28.U.S.C. § 1292 (1964), which grants appellate ~ power to this court in certain limited classes of inter- locutory- oxders, nor under 18 U.S.C. '¢ 3731 (Supp. VY, 1965-69), which ''deals specifically - with criminal appeals? chat tae fd geek | poe | is, of ‘cours¢, the general rule that mandamus | “Imay not be substituted for appeal. Roche v. Evapo- -° . ¥The amendment to 18 U.S.C. § 3731, approved Januaty a 1971, ig\by. its terms‘ inapplicable to this case. Pub> L. No. 91-844, $114 (Jan. sie a : oon eee Fee, t "cert. denied, 377 U.S: 933 (1964). —~ : ~~” Petitioner, United. States, “however} “Pathe the’ "All Writs Statute, 28-U. S.C. § 1651 (1964), as source of ~ .. ‘this court’s power to grant the writ prayed for and. 23 eS 8? Swedes pe ca aoe aes ive Coen "Ine. x. "Dasveriy National Life Ins.’Co., 2d 425, 426° (6th Ce), : argues that-this is an-éxtraordinary case wherein the __ respondent has entered an illegal order which, if al- _ lowed to stand, “would result i in grave and isrepgrable. | : harta to legitimate Governmental interests.’’ r Concerning’ the use ‘of inandamus in “exeeptional : eases," this ‘court has id:, ee - . ~~ Tt is settled that although sparingly ‘ied: the 2 power to issue a writ of mandamus exists and _ . will be exercised by the court‘when in its dis _ ., -eretion the exceptional circumstances of: the ae cabs requits its use: Its use in such exceptional ’ tases, ‘however, does. not’mean that the All Writs Statute grants the appellate court a gen- . eral power to supervise the ‘administration of - 8 justice in the district. court and to review any _ . otherwise unappealable. order. Black v. Bogs, 248 F. 2d 156, 159-60 (6th. Cir. 1957). ° geal Soe also Ex parte United States, 287 U. S. 241, (1932); LaBuy x. Howes Leather’ Co., 352 U.S. 249° (1997) ; Will, Ne United States, 389 U. S. 90, 95-98 (1967). In this last case, Sustice.. Black in a. coneurring a - opittion said: eas WR ees ) “1 Tomgeeec thik manabheiahen: is an ordi : a which Should not be issu —_ in’, 7 _extraordlitany GN {asia ales reattis ) > + that: ‘the ‘granting of mandamus may bring» about the review of a casé as would an appeal, ast Yet this does. not deprive a court of its power _ to issue ‘the writ: Where there are extraordi- — “nary: circumstances, mandamus may be. used — to review an interlocutory order which is by no >. Means “final’’ and thus appealable under federal : _..- -° statutes. Will v. United States, supra-at 108. Bone CH ts ke Z e \ : oN °° : . * Se eae bg 25 GS ee - :: ere § ~ : : q : . n ° ; ; : . 6 et : : g : : es ae = oe = : : 16 be) "3 ii} THE FOURTH / he: District Tadge in’ in .Felied upon the Fourth Am : - tion of. the United States, Ww: The right. of the pi - persons, houses, pay _ | ‘- ‘"unreasonable searche. e be violated, and no “upon, probable ‘ cause 3 affirmation, and- ‘pa: He . place to. be searched, . . to be. seized. U.S. Con | - oe “‘In-a series of cases, ‘thi: - Court. has held that ele recordation by: wiretap is ; erned by the Fourth Amend . "> States, 365 U.S. 505. (1962 ‘389 U.S. 347 (1967); Alder “U.S. 165 (1969) ; .. Giordano - : ee Taglianetti v. . 316 (1969). > ~The basic holding: of: thes - | Katz ease by Mr. Justice St . Phe Government .. agents relied upon +. - and Goldman, and J — here than. ‘they migh prior judicial sanctic tA. ‘validate their conduc -. 4, . -is- apparent that the eS with restraint. Yet t ? selves, not bya judi - tached scrutiny by a were not compelled, 4 fe. % 3s, . ee 1 13 ms y : we Pee Pre 7. ‘ , ° ae . Spey ; P > : . . 2 ‘ -o . a Me * é the executive: Power ‘shall be ani De in a “President of the United. States of 5 rable He shall :;shold his Offi > during the .Term, of - i, four Years, and, together with the ‘Vice. Presi- dent, chosen r_ thésame Term, be. stented as Bases TOS. wining art. i, +h a fom shall in these constitutional pro- | yisions: As we have noted, the. government cites no — constitutional language to support, its position, but it: + does cite some case law. Decision of six of. the cases relied- ion ‘6 liehed as “Telatiqns powers of a domestic security problem,“ 3 - Generally concerning presidential power: in domes- tic ‘affairs the government cites two other civil cases. In re Debs, 158 US. 564 (1895); Marbury-v. Madi- : son, 1 Craneh (5 US. ) 137 (1803). ° : The Debs case was a petition for writ of habeas. ‘corpus. It dealt: with eontempt . of - court ‘seritences meted out by a federal court for violation of an in- | : - junction issued during the Pullman Car: strike of 1894. The opinion upheld the jurisdiction of the court which issued the injunction and entered the contempt * But see Norris-LaGuardia [Anti-Injunetion) Act, 29 US. C. & 101-15 Resa , 2 : P Sentences." The opinion does contain dictum ‘which 3 described broad powers on the part of “the national : . 2s : ee f a, sr | 22 = ee rs 4 : " government”: to: comple forée. ee aye f ob 2 mero ar the United States mails, Avid the: Debs case ean hardly be: read as ‘authority for ignoring dadicin} : " Processes., - As to Marbury v. M adison, suprii, the governiient’s ue " itation seems to us to he questionable from its point - OE vison OO toes dows deal with wevekiential pow. . -Mis-a-vig the Constitution. But itis also Chief Justice UMgrshall's ringing affirmation. of the supremacy of -4ie Constitution over all. three branches. of govern: . . Iijent and of the authority and obligation of the Su-~ _ + Breme Court of the United States to make’ binding as interpretations of that document. We shall quote from : : pak ngich ay eA EMRER perc opinion.” . | As for In re Neagle, 135, vs. I (1890), we thank . the: government for calling to aur attention this’ fas- _ ginating story of the problems of the judiciary in an earlier day: But the holding that the President has a tight under Article IT,’{3 to appoint a Deputy Mar-. | ~ shalto protect the threatened life of a Supreme Court : Fustiee is hardly precedent for this case. oe be : The government also cites Abel: v. United States, —-362-U.S. 217 (1960), This case involved a prosecu- - tion for espionage against the most important foreign _.. Spy -known to the American public in the Twentieth — _... Century. He was an alien and, hence, subject to stat- ee utory: regulations providing for administrative pro- | _- @edures: for deportation for violations of the laws and’ regulations of the United States. He. was arrested by _ Warrant, which the opinion of the Court found to have been, lawfully issued by a lawfully authorized - : ee ee ‘there ara certain established exceptions to the require- nent of ‘a priot judicial warrant for a. search. See 4 T5196). None of these cases, however, were wire- "Lube (oe v. Sawyer, 343: U.S. 579 (4962). There Presi- that the laws are “faithfully exeeuted.” ‘The Supreme Court squarely rejected the inherent: power -doctrine eva pai ac mee ay ada ———— ~ to issue the: order he did, it must. be found in some provision ef the “.'@ contention is 1s nee ee poe Becalt be => pales of his powérs under tution. =a : test, ‘6, It is Glear that if the inatibk haa Saiteonity 3 Fira: ro r) , ’ i "nee - . ‘ . ‘ p ‘ ae -sion of private property in order to keep. labér _tary authorities. / «4 +e. that grant executive power to-the President. Ih ” dent’s power tg see that the laws are faithfully executed refute the idea that he is to be.a law- ~. wDrthe lawmaking process to thérreecommending ~@f laws he thinks wise and the vetoing: of laws ent nor equivocal about who shall make laws section of the first article says that ‘All legis- si - lative Péwers herein granted shall be vested in oS epee of a the United States, .. .”’ After all Laws which be necessary and proper vf n though “‘theater of war”’ eg to bad. And: the Constitution is neither: . which the President is ‘to execute. The first. “on provisions in Agticle ir ry say 7 that “The” ) .”*that “he shgil take Caré that. the Laws — - ° ta Oenkindnilan: in ‘Caief of the Army: end Navy | yar _ The order ‘cafnot properly be sustained as an an _ | exereise of fh: ‘President’s military: pow ne ; as The Nor. can. the ished, order be sustained be- maker. The Constitution limits his functions — , granaged many powérs to the’ Congress, Article — goes-on to provide that Congress -may ‘‘make _ ', Government attempts to do so by citing’ a num © : tary cominanders engaged in day-to-day fight-- ” fulness to‘ our ‘eonstitutional system hold that. 3 ' the Commander ‘iin Chicf. of the Armed. Foreées _ has the ultimate. powér as such to take posses- -. _ -.\. disputes from ‘stopping, production. This is a _ ~~ l - job for the Nations: jJawmaker s, not for its mili--. - gautse of the several constitutional provisions |. . the framework of our Constitution, the Presi-. | a ‘ for earrying into Execution the foregoing Pow-- ~ers,-and all other Powers vested: by\this Con- — 3 in ‘the Government of ‘the Tnites: .- e : ai ca eee ® ee . 2 d : 3 > . v. . : _ d 2 : at . . bd ’ : 3 : . 1 . : ] . °% 3 .. Fr . : om - o . : ken eee SORE ania ‘ans not Saucon that con- gressional | policy be executed in a manner pre-: - _; .:* seribed by ie aor directs that a préesiden- Ae. tial policy be ated in a manner prescribed by .. the: President. The preamble of the order itself, — . fike that of many statutes, sets out reasons why '_- ° the President’ believes eertain policies should be - . adopted, oroctainia these policies as rules of con- * duct, to, be followed, and again, ‘like a statute, au- _ - thorizes a government official to promulg: ad- ° itional rules’-and regulations consistent with the policy proclaimed and:needed to carry that policy into execution. The, power of Congress to ‘adopt such public policies as those proclaimed by the order is beyond question. It can authorize the _ M taking of private property for public-use. It can make laws regulating thé relationships between employers and employees, prescribing. rules de- * signed to settle labor disputes, and ‘fixing-wages and working conditions in-certain fields of our © ‘ economy. The Constitution does not subject this lawmaking power of CongY¥ss to proteinase or far% military Supervision or control. | aa _ Tt is said that other. Presidents without: con- “> gregsional authority;have taken possession of . private btisiness. ‘etterprises in order to settle . ' labor disputes. But even if this be true, Congress has-not thereby lost its exclusive constitutional - - authority to make laws necessary and proper to _ earry out the powers vested by the Constitution .. -° “in the Government of the United. States, or any . Department or Officer thereof.” _ making power to the Congress alone in both good’ -. and bad times. It would do-no goog, to reall ¢ the / The Founders of this Nation entrusted the law ert | a : | ; iiinaidted denims; te tein col ponte aad te : hopes for freedom that lay behind ‘their choice, Such a review would but confirm ‘our helding that ‘this seizure order cannot stand. Youngstown. Sheet & Tube Vo. v. Sawyer, supra at 587-89. ~ The Youngstown case, of course, had nothing to do “with wiretaps. But it is the authoritative case deal- - ing with the: inherent powers of the Presidency—a - . doctrine which is usta adh relied ween oe the DUNS “ment'in this case. : UHR WERETAP ISSUE IN THE SUPREME COURT xy " Historieally there: have been four positions - stated . en the legality of wiretapping or the ev. of ier evidence derived therefrom. is 1. In its first encounter with the problem, the -_ United States Sapfeme Court simply decided that - - snes there was ne trespass infoived in the wiretap there concerned, it was therefore not a search and seizure and the Fourth Amendment did not apply to it. Olmstead ¥. United States, 277 U.S. 438 (1928) ; Gold- : . man v, United States, 316 U.S. 129 (1942). z. In Olmstead Justice Bramdeis in dissent (joined by Justice Holmes, who called: wiretapping a ‘‘dirty _ Z business”) staked, out a position which has many ad- - herents today. This position is that wiretapping repy resented an unfair invasion of privacy which the gov- ernment should not undertake under sed cireun- stance. : . 3& The third position, one which the Supreme Court . -eame to gradually,‘ is now the dominant one in our | CSiteerman v. United States, 365 US. 805 (1961); Mapp v. Ohio, 367 U.S. 643° (1961) ; Wong. Sun v. United. States, 311 —. US. 471 (1983) ; Osborn'v. United States, 385 U.S. 323 (1966); Warden v. Hayden, 387°U.S. 294 (1967) ; Berger v. New Xork, 388 U.S. 41.- (1987) ; Kate. v. United States, 389 CS. a, (1961), fi | . 6 en aaah C—O o ~ . , ae ee law and best expressed in Katz v. Umited States, 389 U.S. 347 °(1967).. The Supreme Court now clearly re _ gards the‘ protection of the Fourth Amendment to be ’ one afforded to the right of privacy. rather than te, ‘property. In Katz. and: its progeny (diseussed and - «ited above) the Supreme Court specificaHy held that .- - wiretapping which did not invade property rights was nonetheless goyerned by the restrictions of the Fourth | Amendment. - 4. The fourth position. is the one just set forth in the preceding section of this opinion wherein the At- : _ torney General and his representatives claim special’ powers for the presidency and for law enforcement officials acting with the authorization of the Attoriféy General. to wiretap in ‘national. security cases,” The _argument for this*power is best exemplified by articles by former’ Attorney General Brownell and former _ -Deputy Attorney General Rogers. Brownell, The Pb- = Security and, Wire Tapping, 39. COrNELL L.Q. 195 _ (1954) ; Rogers, The Case for Wire Tapping, 63 Yax LJ. 792 (1954), This position is also explicated in’ ‘ memoranda exchanged between -three former Presi- ~ dents of the United States and their Attorney Genefal | commanding or authorizing them to ‘make. greater: or: ‘lesser use of. this asserted Presidential power. See “Appendix A. It appears to us that. this ‘fourth. position could + (and perhaps should) be further subdivided as be- - tween foreion and domestic applications. (Note that the American Bar Association has recently adopted on Similar .position.: ABA. SranDARps: FOR ELECTRONIC SURVEILLANCE, 8 Crim. L: Rep. 3097 (Feb. 17, 1971); ~ ABA. DELEGATES APPROVE ELECTRONIC EAvEspRopPIng. | Stanparps, Reports and Proposals, 8 Crim. L. Rip. 2371 (Feb. 17, 1971) ).. But it-is clear that 4 in neither - _ event has the specific power thus asserted ever been es %e *. NN _ : Z °. ‘ a“ > - . bd ° . 4A wy ¢ ‘ - -¢ : xv r 4 - we \ e wee . . r . ® . . . * the subject of - adjudicat’. — preme Court. In fact, in. _. Mr. Justiee- Stewart, “wri vi reserved decision, thereor — 23: Whether safe: a Fourth Amendme: ee » the national securi by this case. Kat: : 308 n. 23. 3 Even more recently in « context, the Supreme » Co on application for writ ' 3 _ . writ as applied. to this © =~ 430 F.2d 165 (5th Cir. 1 | _quéstion 4, 39 saeebel (No..783). | _ From’what has ty Sy the Appellate Courts * - a clean slate. - CONGRESS} * The wiretap problem ! . great concern in the L- _ ‘ment. Early in the histo: ahd with little debate, Ce Says in part:. _ no person not be’. . shall intercept ans ‘ or.publish the ex purport; effect, 0: ,. = communication: oe ‘$605°(Supp. V, 1° Section 605 played sor - the Supreme:Court cass _. bidding interception an:! _ offense). failed to estab: '+ thorization by ais > | minal, bad every ‘inter. sive Attorneys General _ ‘ » wiretap so long as their — - - Brownell, The Public _ 39 CORNELL L.Q..195 .- : Wire Tapping, 63 YALE ark ie L& Safe Streets Act of © Supp. V, 1965-69), was, cer. It followed the Su- - ‘v. United States, supra, — spects it — Katz tant sections of the bill ‘h warrant application in emergency exception hours, and those which ot ‘seeking to restrict the President Possessed oe: aeral, or any hates ly designated by the At- 10rize an application to petent jurisdiction for, int in conformity with - er an‘order authorizing sption of wire or oral federal Bureau of In- ’ agency having respon- ion of the offense as to! © ‘nade, when such inter- has provided evidence unishable by death or r more than one year 7 2277 of title 42 . ' Code (relating to the. ay ae ‘ . . . enforcement’ of the Atomic Energy Act of. 1954}, or under the following chapters of this title : chapter 37 (relating to espionage), chapter ‘105 (relating to. sabotage), chapter 115 * (relatitig to treason),, or chapter 102 (relating to riots); ~~ = (b) a violation of inna 186 or section 501(¢) of title 29, United States Code - (dealing with. restrictions on payments and - ' Yoans to labor organizatifns), or any offense. - which involves murder, kidnapping, robbery, or extortion, and which is pumishable under ae this titles “(e) any offense. which is "punishable : _. * under the following sections of this title: -. , section 201 (bribery of public officials and witnesses), section 224 (bribery in sporting ~.. epntests), section 1084 (transmission of ‘ wagering information), section 1503 : (in- *: fluencing or injuring. an officer, juror, or ' witness. generally), section 1510 (obstruc- tion of criminal. investigations), section . : ° 1751 (Presidential assassinations, kidnap-— _ ping, and assault), section 1951 (interfer- ence with commerce by threats or violence), section 1952- (interstate and, foreign travel or transportation in aid of raeketeering — . « enterprises), section “1954 (offer, accept- ance, or solicitation to influence operations . of employee benefit plan), section 659 (theft _ from interstate shipment), section 664_(em- bezzlemett. from pension and welfare ’ : funds); or sections 2314 and 2315 (inter- (d) any offense inYolving counterfeiting punishable under of this title; ~~ (e) . any offense. involving bankruptcy — fraud or the thanufecture, importation, re- _ eelving, concealment, buying, selling, or state vany offense inolving property ); ee otherwise dealing in narcotic drugs, mari- on 471, 472, or 473 4 ° e* ce €a-g) (Supp. V, 1965-69). _ huss; or other datectoun uy - punish aish-. . able under any law of the United ‘States. _ (f)-"any. offense including extortionate - eredit transactions under seetions 892, Oe, _or894ofthistitle;or | ae __. (g) any conspiracy §o commit any 0 e 4. foregoing. offenses.”’. 18 U.S.C. nat (1) .. ; $ q ) N otwithstanding any other rovision of. this chapter, ‘any investigative.or law enforce-. ment officer, specially designated by the Attor- x ney General or by the. . principal prosecuting ——~ 7 - attorney’ of-any State or a . acting pursuant ‘to a statut t State, ‘who | Fenny determinesthat— --—s : ‘(a)4an emergency situation exists with | : wespect to conspiratorial activities threaten- ing the national security interest or to con- - spiratorial activities characteristic of or- _ ganized crime that requires a wire er oral _ communication to be intercepted before an order. authorizing such- intereeption can ’ with due diligenee be obtained, and \ es (b) there are grounds upon which, an - order could be entered under this’ chapter to authorize such interception, may intercept such wire or oral communication if an application for an order approving the interception is made-in acgordance with this ception has occurred, or begins to occur. In the , absence of an order, such interception shall im- mediately terminate when the -communication sought is obtained or when the application for . the order is denied, whichever is earlier. ‘In the © event such application for approval is denied, _ or in any other case where the interception is terminated without an order having been issued, the contents of any wire or oral communication intercepted shall 1 be treated as hayjng been ob- tained. in violation of this sce ite 2 — an in- 423-855 —11_5 ' ” seetion within forty-eight hours after the inter- "-- \ ais verges dani: inivesd an ptosiiea tot ins we saga: (d) of this section on the person named in the application. 18 USC. § 2518(7) (Supp. V, 1965-69). - = ae (3) Nothing contained in ‘this chapter or in « section 605 of the Communications Act of 1934 (48 Stat. 1143; 47-U.S.C. 605). shall -limit the. constitutional power pf the President to take - such measures as he deems necessary to protect’ - the Nation against. actual: or potential attack _ or other hostile acts of a foreign power, to ob- ‘tain foreign intelligence information deemed - se essential ‘to the security of the United States, or to ‘protect ational security information | against. foreign intelligence activities. Nor shal] . anything contained in this chapter be deemed © _ ' to’ limit the constitutional power of the Presi-. dent to take such measures as he deems neces- sary to protect the United States against the. aa ovevilirew of he ‘Government by force or other unlawful , Or: against any other clear and ~ “present danger to the structure or existence. an the Government. The contents of any ‘wire or: orfl communication interggpted by authority of _ the President in-the exercise of the foregoing powers may be received in evidence in any trial - hearing, or other proceeding only where such — interception was reasonable, and shall not be. ' “ atherwise used or disclosed except as is neces — sary to implement that power. Be U.S.C. — -§2511(3) (Sapp. V, 1965-69). 7 “Without now passing specifically -upon any of. the a more ‘controversial aspects of this legislation; we view @ . the wiretap provisions of the Omnibus Crime Bill as 4 general recognition by Congress that the Fourth Amendment ‘does: “mandate judicial review -of pro- . posed _ searches and seizures of oral communications: > ‘by wire. In: addition, in § 2518(7) (a) Congress pro-. vided a statutory remedy for the éxact sort. of “na- ‘ional Security” problem, which is , presented. py this: . 4% ease. It is ain 5 that the Attorney Gen- > eral chose not to employ ‘it. * While the government appears to rely heavily upon - BUSC. § 2511(3), the language chosen’ by Congress, “Nor shall. anything contained in this chapter be deemed. to limit the constitutional power of the Presi- fe ae dent . .” is not the language used for. a grant. of zi = — © be treiuienitiy repeated. “The sila iol thesis fore, . so- ied aré’deemed fundamental, “* Aad asthe anshocity, from. which. they proceed, Is SADFEME, and can seldom act, they ate de- Ore to be permanent. is original and supreme: ewill organizés the : -, government, and assigns to different de "ta tents their-respective powers. It may. ‘either ‘ stop here; or. establish certain limits ‘not. to be transcended by noe deperenante. | *. rae ; * " Certainly all those ebo: have framed written constitutions contemplate them as forming the. fundamental and paramount law of: the nation, - and consequently the theory of every’ such gov- ". ernment. must be, that an act of the legislature - repugna ugnant to the constitution is void. theory is essentially attached to a writ- ten constitution, and is conséq Be be con- @idered by this court as one of the prineiples of our society. M arbury v. ve adi, - supra at In the same opinion. n Chief Justice Marshall outlined the- -function of the courts in ee the: a ‘tation : It is: exxphatically. the province and antg-at: 7. the: judicial department to say: ‘what. the: law _ -. is. Those who apply the nile to ery must of necessity. expound .and interpret res rule.: If. two laws, conflict with each other, the courts. must decide’ on the operation of each. So if a law be in, opposition to the constitu- tion: if both the law and the-constitution apply. - 'to.a particular case, ‘so that. the court must _ either decide that case conformably to the Law; — ing the’ constitution ; or confor: x to the constitution disr rare ] . court must determingtyhich of. rules’ governs the case.. ‘cent is of the very | very oe} ) sence of. syria — \ i t Cea a tg : ; . ’ eae _ 3 et \ © ° Rg. - ap ei . : “+t j «+ » a -, : Ce eae nae . bt ; : tion; and the constitution is ‘superior to any woe 6 Wy w $e2.. 2 . 3 a ere | _— + Se oe a yy cS ae . * . ? ordinary act of the legisla ; thie co: . _ and not such ordinary act, niust govern the case to which they both apply. ;” . -' y+. hose then who controvert the prineiple that rd pee the constitutio# is, to be manne in court, as...’ ied to the necessity _ yn pe theireyes |. on the constitutiGh, and s¢e only the law. © - : | St thin thos pothts tbo tb siguted thie exuiahite- ore ‘This doctrine would su vert the véry founda- eee tien. of all written constitutions. Ae Vv. Madison, Supra at 70.. ‘a ‘The government has’ not poititd tes ‘ea we do. not - find, ‘one written, phrase in the Constitution; in the °° ° statutory law, or in the case law. of the: United States, — “ which exempts the, President, the Attorney General. . or federal law. enforcement from the- restrictions of: | the Fourtht Amendment in the case at hand. I clear that. at Conroe in the Omnibys Crime Control :& ° Sake 8 of 1968, 18 U.S.0; § 2510 et -seq. . (Supp. VY, 1965-69), refrained from attempting to. - ‘convey to ‘the President any radu which he did not ye already possess.. _ Essentially, the. government rests its’ case upon the oO ‘inherent powers of.the President as Chief of State to. “ defend.*the existence of the State. We ‘have already shown. that this very claim( was rejected by ‘the. Su- ‘ preme Court in Youngstown, Sheet: & Tube Co. v. ' Sawyer, 343 U.S. 579 (1962), and | we shall not repeat nN its holding here. . . ~ _ ‘Art additional: difficulty. with the inherent: power ie argument:i in the context of: this case is that the Fourth eon , Amendment was’ adopted in the immediate. aftermath : of abusive searcWes and sejzures directed agaist: © . American colonists Qinder.the sovereign: and inherent ‘aise of. ane George £ yi. The United Ryne ‘ee ot a stitution was vniobied to weirs a: hock: uppn: ‘so TER, | '. eign’. power. The’ creation of three ‘coordinate - branches of. Sovernment by. that Constitution was de- signed to require sharing i in the —— of that: : awesome power... a It is strange, indeed, that i in ‘this case the’ traditional power of sovereigns like King George III should be - Lo. invoked. on behalf of an American President to defeat ‘one of the fundamental freedoms fer which the found- ers of this country overthrew King George’s reign. ~ The argument. for unrestricted employment of Pres- idential power to wiretap is basically “an afgument i n —“terrorem.. It ‘suggests’ that constitutional government Carrington, 19 vy. Search Warrant} ‘for the United States ‘Supreme Court. summarized - the. long history of the English striving’ for. freedom is, too weak, to survive in 4 difficult world and urges’ worried judges and worried citizens to return to accept- ance of the'security of “sovereign’’ power. We are earn- estly urged to believe that the awesome power, sought . for the Attorney G —o wall always be = with de. | cretion. x . & : Obviously, even in “very recent: days, as. we shall’ see, this-has not always been the case. And the his- _ tory of “English peaking peoples (t® say nothing of others) ,is replet® with answers. See e.g., Entick-v. aw. St. Tr. 1029 (1765). In Marcus ~ 67 U.S. 717 (1961), the opinion of ae and press and noted : , Historically the struggle for freedom of specs "and press in England was bound up with the _Assue of the scope of -the search ‘and seizure ae” power. Marcus. v. Search Warrant, supra at . ae ~ 724, The Court also pointed out that as eae as the. | ad _ 1760" S aon Camden has Genounced .~ eae 8 | power given to messengers to search wherever their : suspicions may chance to fall. If such. a power is 37 truly invested in a secretary of state, and he can-dele- » gate this power, it certainly may affect the person “and property. of every in this. kingdom, and is - totally ‘subversive of the liberty of the subject.’ Id., ; . 1167" [Wilkes v. Wood,.19 How. St. Tr. 1153]. ”? Mar- | _ cus v. Search Warrant, supra at729. - . The Court’s opinion concluded : This history was, of course, » part of the intel- : ‘Jectual matrix within which our own constitu- tional fabric ‘was shaped. The Bill.of Rights - . _. Was fashioned against the background of knowl- — edge that unrestricted power of search and.seiz- ure Id also be an instrument .for stifling libefty’ of: expression. For the serious hazard of suppression of innocent expression inhéred in =~ the: tion confided in- the officers authorized to.exercise the power. Id. at 729. That which has distinguished the United States of - America: in the history of the world has ‘been its con- — stitutional protection of individual liberty. It is this | which has created the wonderful diversity of this ' great country and its many and varied opportunities. It is this which has created Justice Holmes’ free mar- ket-place of ideas €rom* which have ‘come our most : : signal advances in stientific and technological achieve- — ment and in social progress. Beyond doubt the First Amendment is the ‘cornerstone of American freedom. .' The Foufth Amendment stands as guardian of the First. .Amendment’s judicial review requirements do not prohibit the President, from defertding the existence | of the state. Nor does the Fourth Amendment require that law enforcement officials be. deprived of elec- Of course, it should be notéd that’ the Fourth wo” | | tronic surverilance. What the Fourth Amendment = does is to establish the methdd they must follow. _ If, as the government asserts, following that method | ‘poses security problems (because an indiserete or " corruptible judge or ¢ourt employee might betray the proposed investigation); then surely the answer is - to take steps to refine the method and. éliminate the problems. No one’ could be in better position to help the courts accomplish. this goal than ~ Attorney, _ General. If there be a ngeit for’ ‘increased sociirite in the presentation of certain applications for search war- .. . rant in, the federal- court, these are.administrative problems. amenable to solution through the Chief Jus- . car of the be—United States:.and the United States. icial Cnatentone and its affiliated judicial. orga- sea The inclination of. the judiciary to meet the practical problems. of enforcement in this area is - evidenced in the specific holding of this court and the | United States Supreme Court in United States v.- Osborn, 350 F. 2d 497 (6th Cir. 1965), afd, 385 U.S. . 323. (1966), and in the dictum in Katz v. .United States, 389 U.S. 347 (1967), upon which “the search warrant terms of the.Omnibus Crime Control & Safe” Streets Act § 2516 were largely based. Congress clearly _ . coneeived situations so delicate that, for example, the; ' “ Attérney General might seek his warrant for a search™ - from. the -Ghfef Judge-of the appropriate United... States Court of Appeals..18 U.S.C. § 2510 (Supp. Vv... 1965-69) : So.do we. But what .we cannot conceive is - that in’ the midst ofthe. turmoil of the present day, the courts of the United States should suspend an important principle of the Constitution. Thé very nature of our government .requires us to defend our . nation with the tools which a free society has created | and proclaimed : | which, indeed, are justification for t., . its existence. We hold that in dssltng withthe threat of Aiteniedie . subversion, the. Executive Branch of our government, - : . including the Attorney General and the Jaw enforce- ment agents of the: United States,. is: subject td the limitations of the Fourth Amendment to the Consti- ° tution . when. undertaking searches and seiziires for | oo _ ,oral communicatiotis by wire. © . rag _ We seek ‘to ‘be equally explicit about dae wedo not decide in this case: _ -O 3; 0 1) We do riot decide “what the ‘President ‘of the _ A United: States ean or cannot lawfully do under his_ constitutional powers’as @omriander-in-Chief of the ~ Army. and Navy to defend this eowntry from attack, espionage or sabotage by forces or agents of a foreign -power. As we have noted, the cértificate filed by the Attorney’ General in this case makes no reference to and claims no reliance upon any such authority. - 2).We_do not decide whether’or not there ‘were facts available to the Attorney General in ‘this case _ which -might have constituted -probable cause for is- suance of a prior warrant for the wiretaps ‘under — 18 U.S.C. § 2516 (Supp. V, 1965-69), or a- subsequent - warrant (within 48 hours) as provided for by 18 _ indicates plainly that no such applications were made. ' - Indeéd; this record is devoid of any shewing that any presentation of information under oath was ever made ~ before, or any probable cause ‘findings. were .ever | - entered by any se official—let alone any judge. | ae In our view, ‘the Clay case (United. States v. Clay, 430 ‘F.2d 165 ,(5th Cir.. 1970), cert. granted, limited ~ - to question 4, 39 U.S.L.L. 3297 (U.S. ‘Jan. 11, 1971) (No. =). cannot appropriately be read as authority | ? UW®.C. § 2518(7) (Supp. V; 1965-69). This record — e at om - ASS | for warrantless wiretap - - In that case the gover . '” illegality of cfour. separ under: the same inherent _ The transcripts of defen, a Versations: | were turned . “ment of Justice:-In one s tap was upon the telepho’ King, Jr. One wonders, | Presidency were bread » ~taps in the first instaner. . concededly unconstitutio:: ——. As to the “fifth” wiret: _ the Attorney, General's “for the purpose of ge information.”” The Fifti _that such foreign intel! judicial warrant was 1 This was the. second’ is sought from the Supr noted, the Supreme Co... issue while granting ce: matter. - '-In-the case behice. lis, ~- eral’s certificate makes el. were thought to be war problems. We have note powers of the Presidency. . Fifth Circuit thought jus - intelligence ‘information’ Withoiit passing on that have found no. such spec -to disregard the Fourth curity cases:like this one. ' The last-issue argued °(_ concerns the order-of ¢ & ~ -overnment contends that dge found the intercep- should have determined ot relevant to this case, ~ closure. This very issue ‘y the United States Su: United States, 394 US. - pinion of the Court said: ent phrase, ‘a chance re- ;. what appears to be a *, the identity of a caller - . he other end of a tele- .her of spéaking or using | significance to one who te facts ‘of an accused’s rmation may be wholly meaning to one less well | vant circumstances. Un- ter of judgment, but in too complex, and the reat, to rely wholly on it of the trial court to’ which might have con- , ent’ S case. + ° ‘ - - ‘to be more ‘than a for- - 1ot left entirely to. reli- cimony, there should be. records of those over- ch the government was lilding its- case against uted States, supra at: -d). related: - case, the Su- — as giving the District, ' duty to sereen govern- ercepted conversations _ nously : 2 | tie the defendant - was entitled to see a | ~ transcript of his own conversations and nothing else. He had no right to rummage in govern- - ment files. Taghanetts Vv. United ciancanes 394 ~ U.S: 316, 317 (1968). | Thus. the Supreme Court held that all illegally | _ intercepted. conversations | of a_defendant __must._be... : -. » made~availablé to him, but that the District Judge — “May in camera ascertain which transcripts are COv-: ered by this ruling. Of course, in-this case we have _ no problem concerning standing. The government concedes that Plamondon’s own voice. was intercepted -and recorded and the District Judge and this court — have- held the interception to have been illegal. . | We cannot agree: with the dissent that Justice | Stewart’s concurring ‘opinion in United States vy. Giordgno, 394 U.S. 310, 313-15 (1969), in any way _ weakened the disclosure ‘requirement of Alderman. The full text of J ustice Stewart’s opinion makes - it clear that the “preliminary determination” with. . which he was concerned was whether or not “any of the surveillarices. did violate the Fourth Amendment.” This determination Justice Stewart held could be - eo by in camera ‘inspection—as has been done in ff thjp goase | both by the District Judge and this court. ; e believe that the Supreme Qourt has “held that a defendant: whose personal conversations haye been ‘illegally recorded is entitled to transcripts of the . . illegally recorded material without regard to whether. - a judge on inspection in camera might or might - - not be able to find relevancy. ‘Nonetheless, we have - considered remand of this case to. the District Judge ’ for an expression on the relevancy issué so as to have a complete appellate record. On inspection of the sealed exhibit’ in this case, however, we cannot (and we do-not believe the District Judge could) ascertain with any certainty whether or not the government — ~ had derived prosecutorial benefits from. this illegal search to. which benefits defendant would have the . right to object-at trial under the doctrine of ‘“‘the fruit; of the poisonous tree.’? Nardone v.-United States, . 308 U.S. 338, 341 (1939) : 3 Wong Sun Ye U nited States, ' x 51 -same position. I read Alderman as requiring an ad- - versary proceeding in that case, but not as specifying ° . the procedure to be followed by a District Court.in = _ In my opinion, the interpretation of the District ° Court was erroneous. In decisions subsequent to Al- _ _ derman, the Supreme Court clarified any ambiguity . whith might theretofore have existed by holding that an adversary proceeding and full. disclosure are not- required for resolution of every issue raised by elec- _ tronic surveillance. In Giordano v. United States, 394 US. 310, Mr, Justice Stewart, in a concurring opinion, stated : : : ne Beet | Moreover, we did not in ‘Alderman, Butenko, - _ or Fvanov, and we do not today, specify the pro- cedure that the District.Courts are to follow in. making this preliminary ‘determination. We have nowhere indicated that this determination cannot appropriately be made in ex parte, in camera proceedings. ‘“Nothing in ‘Alderman v. United States, Ivanov v. United States, or Butenko v. United. States, ante, p. 165, requires an adversary proceeding and full disclosure for _ resolution of every issue raised by an electronic - surveillance.” Taglianetti v. United States, post, p.316..(39US.at314)) 02 my judgment, the Supreme Court-in Alderman. did. not abolish nor intend to impair the traditional use of 1 camera proceedings which for so many. years. have been so efficacious in the protection of the rights - of litigants. There may be cases involving. a multitude of documents and complex issues where an adversary _ Proceeding: is required,"but such is not the case here. | The s The iks ealed exhibit contains verysfew sheets of paper. _ | ues were not complex. Only. Plamondon. was* charged with the actual bombing on September 29,.. - 1968, and he either didor did not do it. The -precise questio1 . Government in Unitea — - (5th Cir. 1970),- which -surveillange sttbmitted. - camera inspection. The illegality with respect - wére-turned over to tk . related in any manner - for violation of the §. . em ag ENO I! OTA at PILES AON A STR ce DS IT: Nt | ‘The power f the President t to sre eléchecndn sur. : ~veillanee 4 in national Security cases has been upheld j in _---United States-¥. Clay, 430 F.2d 165 (5th Cir. 1970); ms ‘United States . Butenko, 318 F. Supp: 66 .(D:NJ, 1 aX “amy ; and United States Vv. Dellinger, Grim. No. 69." . -. 180, N-D. Ith, 1970: It was: denied in United States y, - Smith, Crim. NO. 4277, ‘C:D.. Cal:, — : . Mp..Justice, , White; ‘concurring in Katz v. United. / States, US. 347, at. 363-364 (1967), said: 3 xa oining the Court’s opinion,. 1 note: thee 1 come acknewledgment that there are circun- eo mot Y which, it is reasonable to search with- ' * out a warrant. In this connection, in footnote.23° the Court points out that today’s decision does. Be ON agp ranch option gl security cases. Wire-tapping . et “to protect the ‘security of the Nation has been an- - \". thorized by successive. Presidents. The present ' Administration: would-apparently save national , Security| eases‘ from restrictions against wite . . . tapping, See Berger v. New York, 388,U.S. 41, OTR ete ee 112-118. (1967) _(White,: J., dissenting). We G\ foo 0 o¢ “should not: require the warrant procedure and the. “: : magistrate’s ‘judgment if the President of the Pe" in nted States or his chief legal officer, the Attor- oe ~ ney General, ‘has considered the. requirements of 4 * national security’ and. authorized electronic. Sut: : veillance as reasonable... -. > o of uistiogn' ‘Douglas and.’ Brennan. expressed’ contrary i Re st views, 389 U.S. at 359-360. The Supreme. Court has . me ~ not decided the. issue,. Giordano ° v. - United. States, 394 "U.S. 310, 314. . fae eG ‘regard as ; inapposite ‘the ease of Youngstown" » Sheet id Tube’ Co. v. Sawyer, 343 U.S. 579 (1952); / hieh: involved seizure by the President of private: papery 3 in order to prevent a-strike which he thought >. would: seriously affect, the economy of the: éountry. 2 |The: a of the. incurs etre attacks ga : ‘ “i ‘ ae . t-te. 2 oben - ae eas e Pit ad to overthrow it hy force and. violence in- yolves an entirely different matter, In my opinion, the surveillance in -” present ¢ casé c “was reasonable. : It has been said. that wiretappitig 3 is dirty business. | “h Professor Wigmore answered. this argument: | -priate. i District It Corts But so is likely to be all’ apprehension of _.>, malefactors. Kicking ‘a man. in the: stomach is "dirty business’*normally viewed, but if a gun- ‘man assails' you. and you know enough of the | French art of. savatage to kick him in the ' stomach ‘and thus save your life, is that fag _ business for you? 8 Wigmore on Evidence — “ § 2184(b), p. 50. Also 23 Ill. L.Rev. 377 (1928). ft agree that the Temedy: of mandamus is appro I would brink. the he writ”stid vacate ” inde of ‘the > | : e _ APPENDIX B. ° UNITED STATES DISTRICT COURT -. EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION oe - CREMINAL No. 44375 _ Unitep States or AMERICA, PLAINTIFF. . . Ve. « oW @- gt . JOHN SINCEAIR, : Law RENCE ROBERT “Pun” PLAMONDON, JOHN WATERHOUSE Forrest, DEFENDANTS | Mac inti Opinion. and Order Granting Defeni. ants’ Motion for. Disclosure of Electronic or Other - Surveillance" After the retiirh of the indietment in the present ase, but before the commencement of trial, counsels ° ‘for the defendants filed a motion: for aisdinninin of . electronic. surveillance in accordance with the. United ‘States Supreme Court’s holding in Alderman v. United States, 394 U.S. 165 (1969). In essence the - - motion requests an order from the Court directing the | | Government to divulge to defendants all logs, records, and memorandaeof’ electronic surveillance directed at any of thie defendants or unindicted cé6-conspirators, . and it further réqitests that a hearing -be held to de- termine ‘whether any of'the evidence upon which the indictment is based or which the Government intends to introduce at trial was tainted by such surveillance. *: In response to this motion the Government submitted (63) : 7 : ° . os PEABO ye RETR gp Ce NS ite ADE A KR © %.* iid Pe PRP RIES fae Es NN tan Fa oh NY an answer which stated tl ment had no knowledge o -pertaining to any of the d inquiry was ther being « Bureau of Investigation. ment stated that the Unit would advise the Court if electronic. monitoring wa_ _ event, would file a reply ti . discloas: , Subsequently, the Court by the United States A- Mitchell, stating that he b necessary the wiretappin: ~ Plamondon’s conversation. - were submitted with this < inspection of the Court in ¢ these materials was a mot ant’s request for disclosu. dence and a ‘brief in supp the affidavit and the above — General has certified. that 7 particular facts eoricernir, prejudice the national inte; | ‘been. requested that: the Go_ to any decision. regarding determine how it will proce ants have submitted reply. position that this electroni — mitted to them for their inv _ was heard regarding this is 16th, 1971. | re --In Alderman v. United s Court held that the Gover — make -available to a defend ‘standing, ary conversations ” 4 1e Government over- egal electronic sur- + is ruling is to reih-— ionary rule of the ag the Government dence which is -ob- ids. In the- instant was a party to the 2 requisite standing sea motion for dis- becomes necessary nce involved herein: defendant’s Fourth us evolved that dis- the District Court. vas conducted ille- Justice White in _§. 310 (1968). _at in this matter, : monitoring of de- 1s was lawful in ance was initiated: ‘ arrant. In support © contends ‘that the agent of the Pres- to authorize elec- warrant in the in- lidity of the Gov- . minder the Fourth _ d by the Supreme Tnited States, 389 however, a small ch concern them- - its oral ot: United States VS. . | . 66 Feliz Lindsey O’Neal, Criminal No. KC-CR-1204 (0, _C.°Kan., September 1,°1970), a case in which. the District , udge made an in-court ruling that surveil. lance pursuant to the authorization of the Attorney General was lawful. See, also, United States of Amer. ica vs. Dellinger, Criminal No. CR 69-180. (N.D. TIL, . February 20,. 1970); United States v. Clay, No. 783 — O.T. (5th Chr. ‘July 6, 1970) cert. _pending. ' -Particularly. noteworthy, and the basis of defend- ‘ant’s oral-argument in support of" his motion for dis. closure, is the exceptionally well- reasoned and thor- _ ough opinion of the Honorable Judge Warren Fergu- son of the Central District of California. U.S. y, Smith, Criminal No. .4277-CD (C.D. Cal., January 8 1971). The. affiday it and circumstances. which were represented before J wdge Ferguson are identical to . the affidavit and issues now before this Court for con: sideration, and the Court “isccompelled to adopt the rule and rationale of the Smith case in Teaching its _ decision today. The. great umbrella of vig al tiptits’ pr otected by the Fourth Amendment has unfolded slowly; ‘but very deliberately, througtiout. our legal history. The cele- - brated cases of -Weeks v. United States, 232 US. 383 (1914), and Mapp v. Ohio, 367 U.S: 643 (1961), beeame the cornerstone of the amendment’s founda: ‘tion and together these decisions established the prec. edent that evidence secured in Wwiolation of ‘a de . fendant’s Fourth Amendment rights could not be ad- ‘mitted against him at his trial, In Silverthorn Lum- ber Co. v. United States, 251 U.S. 385 (1920); the familiar legal simile of the ‘‘poisonous tree’”’ became the pillar for the Court’s ruling that the exclusionary rule of Weeks was to be expanded to prohibit the ad. mission ef any fruits derived from illegally seized evidence, The final buttress to this canopy of Fourth 4 67 Amendment aceite is derived from the Court’s. declaration that the Fourth Amendment protects a de- fendant from the evil of the uninvited eur. In Sil- _verman v. United .States, 365. U.S. -505 (1961), and Katz v. United: States, 389 U. S. at BAT, the Court ruled that oral statements, if Wlegally overheard, and their fruits are also subject to suppression. — | In the instant case the Government apparently and argues that the President, actirig through the At- snag? General, has the inherent Constitutional: ‘pow- :.(1) to authorize without judicial warrant, elec-. : aie surveillatice in “‘national security’? casés; and.. (2). to determine unilaterally whether a give en ‘situa- tion is a matter within the coneept of national secu- rity. The Court.cannot accept this proposition fe or we | are a country of laws and not of .men. ; The Government contends that the President: can ‘conduct warrantless surveillances: under the author . ee of the Omaibls Crime Control and Safe Streets Act ’ of 1968. The effect of ‘this comprehensive statute is to:‘make unauthorized surveillance a serious. crime, ‘and the. general rule of the act is that Government: - surveillance and/or-/ wiretapping is- ‘permitted only upon the showing of probable cause and the issuance of a, warrant. An exception to this general rule per- .. mits the President to legally authorize,electronic sur- . veillance ‘‘to obtain foreign intelligence. information ~ deemed essential to the secur ity of the United States.”’ The ‘Act also provides: | Nothing contained in this chapter or in’ See. tion .605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S:C. 605) shall limit the «+. constitutional power of the President to take. such measures as hé deems necessary to protect the Nation against actual or potential — ys \ ignores the overwhelming precedent of. these cases NN ~/ . . s r , : ; or other bowtie acts of a Scesied, power, or to. _ obtain foreign intelligence information deemed essential to the security of the United States -6r to protect national security information _ against foreign intelligence activities. Nor shall anything contained in this ‘chapter be deemed ‘to limit the constitutional power of:the Pregi- dent to take such measures as he deems neces. - sary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any ‘other clear and. present danger to the struc ture or. existence of the Government . In addressing himself ‘ ithe Selanne of this ae . ‘tas provision to the warrantless surveillance issue, __ Judge Ferguson of the California. District Court -“ stated succinctly that; “Regardless of these excep. ‘tions in the criminal statute the President is, of’ . course, ‘still subject to the Constitutional limitations imposed upon him by the constitution. This Court is. in full aecord with this rationale for it is axiomatic - that the Constitution. is the Supreme Law of the -. Land. Marbury v. Madison, 1 Cranch (5 U.S.) 137.” _ The. contention by the Government that in éases involving “national security”? a warrantless search ii not an illegal one, must be cautiously approached and _ analyzed. We dre, after all; dealing not with the rights - of one solitary. defendant, but rather, we are. here cot- cerned with the possible infringement of a funds i _. mental freedom guaranteed to all American citizens In the first Supreme Court case involving wiretapping; . Justice Brandeis concisely. stated the issue at. staké in a case of this nature: The makers of our Oolistitution sprite «to secure conditions favorable to the pursuit _ of happiness. They recognized the significance | of man’s Seniee 3 nature, of his ee and «8 , - | of his intellect. They aon that only a part of the pain, pleasure, and satisfactions of. life are to be found in material things. They sought to protect ericans in their beliefs; their» . thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehen- sive of rights: and the .right most valued. by civilized men. To protect that right, every un- justifiable ‘intrusion by the Government upon the privacy of the. individual, whatever the means employed, must be deemed a violation ‘of the Fourth. Amendment. Olmstéad v. U’ wired States, 277 U.S. 438, 478 (1928). | It is ‘to be. remembered that: the puiledtive sword : which is enshrouded in the scabbard.of Fourth Amendment rights and which insures that these . fundamental rights will remain inviclate, is the well defined rule of exclusion. And, in turn, the cutting | - edge of the. exclusionary rule is derived from the re- ~ 2 quirement that the Government obtain a search war- rant before it can conduct a lawful search and \ seizure. It is this procedure of obtaining. a warrant that inserts the impartial Judgment of the Court si tween ‘the citizen and the governm : Genérally, in order to search .a law enforcement ‘agents must ap] . _ or Magistrate’ and‘ request a warrant. The request - ~ must describe the place to be searched, matter to he seized, and, most importantly, there must be a state- -ment made under’ oath that’ the Government has © probable cause to believe that criminal activity exists. ‘Through ‘this procedure, we as citizens are assured — * the protection of our constitutional right to. be free from unreasonable searches’ and seizures by ‘the main- — tenance of a “system of checks and balances between the arms. of f government. Prior to issuance of any search je _. reasonable and not in ‘violation of Fourth Amend- ~ evaluation \as to the reasonableness, the scope, and the _ to authorize electronic surveillance which he deems. _. argument, however, is untenable for although it has. . “dential power of surveillance ‘is specifically \imited — Ee warrant the Court must independently review the re- quest to search and make an objective determination whether or not probable cause of some criminal activ. ity exists, which activity would make the searching ment rights. In absence of such a requirement ofan - ' objective determination by. a.magistrate, law enforce ment officials would , be perniftted to make their -own «: evidence of probable cause for a search. This,Court ‘is loath to let such a condition come to exist. . ‘In its brief’ the Government cites several cases - which have held that ‘the President has the authority’ is necessary to protect the nation against, the hestije 5 acts of foreign powers. Using this precedent the Gdv- _ernment submits that the President should also have - "the constitutional power to gather information con- - cerning: domestic organizations , which seek to attack —and subvert the Government by unlawful means. This _ jong been recognized that the President has unique and plenary powers in the field of foreign relations; Chi- cago &° Southern Air Lines, Inc. V. Waterman BB. . Corp., 333 U.S. 103 (1948) ; inthe area_of domestic . ‘affairs the Government can act. only in limited ways. See, Brandenburg v. Ohio 395 U.S. 444. (1969): . The Government ‘also asserts, that the President's authority | for warrantless. monitoring; stents from a confidential memorandum written by President Roose- velt in 1940. But if the President is givezi power to . delegate who shall conduct wiretaps, the question arises whether there is any timit on, this power..Fur- — thermore, the Smith case, supra, in tracing the history: ' of. the Roosevelt directive, establishes that the Presi- ~ oie _ to“exceptional cases’’—cases of a non-criminal ‘nature or ‘Which. concern the country’s international security. » An idea perverse to permeate much: of the Gov- - ent: is that a dissident /domestie or: ” ernmhent’s arg ‘ ganization is akin’ to an unfriendly fore power and -must be de It with in thé same: fashiork There is great. danger in an argument of this natuve for it strikes’ - at the very constitutional privileges and immunities - that are inherent. in ‘United States citizenship. It: is ~ to. be remembered’ that in our democracy all men are ‘to receive equal and. exact. justice regardless of their pees beliefs or persuasions. ‘The ‘Executive branch ae -of:our Government cannot be given the power or the opportunity, to investizate and prosecute criminal vio- - lations under two different standards simply’ because ‘an accused espouses views. “which are inconsistent, _with our present form of évernment. In this turbulent time of unrest; it ‘is often difficult Re for the. established. and. contented metibers of our so- ciety to tolerate, much less try- to understand, _ contemporary challenges’ to our existing form of Gov- ernment. Ef democracy as we know it, and as our fore- ’ fathers established it is to stand. then “attempts of domestic organizations ‘to attack and subvert the exist- . ing structure of the Government” (See affidavit of Attorney General), cannot be, in and of itself, a crime.’ - It. become criminal only where Tf can: be shown’ that such activity was aceémplished through unlawful - means 5, Sach as invasion of the rights of others, name- : sly through force. or violence. "Phe Affidavit of the Attorney General of the United States makes-n0_ assertion, that at the. time these wire- taps were installed} taw-enforeement a cents had prob- - able cause to sing84i that “eriliiiret- activity (e.g.,, the. the Gov ernment ‘through. foreeor- om vcouian was being plotted: Indeed, if such pr rans _ illegal overthrow of a oe pee ia : i oa : aot : . . e . . 3 < 4 eS. ie " ; a ‘ ae . a ha z 5 : 3 - a 7 . a eatemete~ . Ko. ee Genaral is.in error: it 3 is supported neither © nor by the language ; of the Omnibus Crime 7 - ‘by .one individual was never ets of our Constitution and adopts the hold- . powe contemplated: by the r cannot be tolerated today. This G . ing of Judge Warren J. Ferguson i in U:8.-v.. Smith, -. . Criminal.‘No., 4277-CD, eto a Cal., Jan. 8 ge 3 a which held that: ees “ys ei . in: ‘wholly domestic stianlpid there ts. . no national security exemption from the war- | _ rant requirement of the Fourth, Amendment. . » Sinee there is no reason why the Government ~., eould not have coniplied with this requirement — . by obtaining the impartial judgment of a court before conducting the electronic | surveillance ‘In’ question. here, it was- obtained in violation _of the Fourth Amendment. . ~ ©. This Court hereby ORDERS that the Givereagil make full diselosure to defendant Plamondon of his monitored | conversations. The* Court; in ‘the exercise of ‘its discretion, further orders- that an. evidentiary : * hearing to determine the existence of tairtt éither in - ae ‘+ the indictnfént or in ‘the evidence introduced at trial . ‘be conducted at, ‘the — of ‘the trial of this * matter. 7 a “Widies J. KEITH, United States District J: en ‘9 Trocuaner 25, 9. Se yicigs & ake ee ae ope ri : we ARE _ Me : INTHE UNITED STATES COURT OF APPEALS : | 7 . FOR THE SIXTH CIRCUIT ee cw ~ No. 71-1105" oer | _ Usrrep Snares Or Amenica, PETITIONER ee ee Sey on ea Comin: FOR THE pices De. ORABLE Damon J. KEITH, RESPONDENT * i siencilanes with the opinion this day filed, the Peti- tion for ‘Writ of Mandamus is heréby denied. (~~ Entered by order of the Court. |. hag : = Sudge Weick dissents.» eaten ee tee Cant w. - Raw, Clerk. Ap 8, i911, ) ‘ . 73) “mcr OF MICHIGAN, Srerees Denese Te — ww . cau aan ane . es , "The ia ae Crime Control bid Safe Streets he i= 1968 provides, in pertinent ‘part (e Stat. 214, 18 0. S:C. (Supp. V+) 2512(3)): . ar Simkar: ocnitainedl- ia ids dealer: or iti see- * tien 605 of the Communications Act of 193448 ‘Stat. 1103; 47 U.S.C. 605) shall limit the co . tutional power of the President. te take such measures as he deems necessary to protect the - , Nation against actual or potential attack or other _* ». hostile acts of a foreign power, to obtain foreign --. ° -jntelligence information deemed essential to the ' ° geeurity of the United States, or to protect m- +. tional security information against foreign in- -__ teligence activities. Nor shall anything contained _ in this chapter be deemed to Hmit the constiti- tional power of the President to take such meas- -~ ‘ares as he deems neeessary to protect the United _ States against the overthrow of the Government - py force or other unlawful means, or against any other clear and present danger’to the structure "or existence of the Government. The contents of . any wre or oral conimunicatidn-intercepted by ‘authority of the President in the exercise of the “foregoing. powers. may be received in evidence . in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as isnet- — to implement that power. = : ved ros? ~~. meee U.S. GOVERNWERT PRINTING OFFICE: 972 os ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0043%3A02. Public record. Not legal advice.