Application of The United States For An Order Authorizing The Interception of Oral Communications, in Re United States of America, 563 F.2d 637, 4th Cir. (1977)
Application of The United States For An Order Authorizing The Interception of Oral Communications, in Re United States of America, 563 F.2d 637, 4th Cir. (1977)
2d 637
Upon entering the case, the FBI concluded (1) that the interception of oral
communications within the commercial building was the only available method
of investigation which had a reasonable likelihood of securing the evidence
necessary to prove the violations of law, and (2) that the only feasible method
of interception would entail surreptitious entry of the building to install,
maintain, and retrieve listening devices.1 It was proposed that three listening
devices be placed on the premises, one in a private office and two in a part of
the building open to the public. The latter two would be activated only when
that part of the building was closed to the public and when it was verified that
one or more of the target individuals were present.
On December 20, 1976, the Government applied to the United States District
Court for the District of Maryland for an order under 18 U.S.C. 2518 which
would have expressly authorized both the interceptions and one or more
surreptitious entries at the commercial premises. An in camera hearing was
held on the application the same day.
By memorandum and order dated December 30, 1976, 2 the district judge
denied the order, although he found that the application met the formal and
substantive requirements of Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. 2510 et seq. Specifically, the district court
agreed that the bugging of the commercial establishment was the only avenue
then open to the Government if the investigation was to proceed,3 and that this
could only be accomplished by the use of surreptitious entry. Nonetheless, the
court concluded that under the Fourth Amendment standard of
"reasonableness," the Government was required to establish some "paramount"
or "compelling" interest to justify judicial authorization of the surreptitious
entry needed to install the bug, and that such a showing had not been made in
this case.
Seeking reversal of the district court's decision, the Government petitioned this
court to exercise its appellate jurisdiction under 18 U.S.C. 3731 or 28 U.S.C.
1291 (Case No. 77-1238) or, in the alternative, to direct a writ of mandamus
to the district judge (Case No. 77-1284). Today we explain more fully our
memorandum and order of July 26, 1977, in which, on an expedited basis, we
denied the petition for a writ of mandamus in No. 77-1284, accepted appellate
jurisdiction under 28 U.S.C. 1291 in No. 77-1238, reversed the order of the
district court, and remanded the case for further proceedings.
Safe Streets Act of 1968, 18 U.S.C. 2510-2520. while the act acknowledges
the practical dIstinction between " wiretapping" and "bugging," see 18 U.S.C.
2510(1), (2), (4), it establishes the same scheme for the judicial
authorization of either type of surveillance. Thus, our summary of that scheme
with respect to wiretapping in United States v. Bobo, 477 F.2d 974, 980-982 (4
Cir., 1973), cert. denied421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774 (1975),
pertains similarly to the procedure which the Government and the district court
were required to follow in this case.
7
First of all, we note that the Government does not advance 18 U.S.C.
2518(10)(b) as a basis for appeal. That section gives the Government the right
to appeal from an order granting a motion to suppress made under 18 U.S.C.
2518(10)(a), or the denial of an application for an order of approval for
emergency electronic surveillance made pursuant to 18 U.S.C. 2518(7).4 The
Government points out, however, that section 2518(10)(b) is not exclusive and
by its terms the appeals authorized in the two specified circumstances are "(i)n
addition to any other right to appeal * * * ." Accordingly, the Government
contends that it has a right to appeal the district court's order under either 18
U.S.C. 3731 or 28 U.S.C. 1291.
We agree with counsel for the appellee that appellate jurisdiction of this case
cannot be based upon 18 U.S.C. 3731. That statute provides in pertinent part:
10 appeal by the United States shall lie to a court of appeals from a decision or
"An
order of a district court suppressing or excluding evidence or requiring the return of
seized property in a criminal proceeding * * * ." (Emphasis supplied).
11
We are of the opinion, however, that we have jurisdiction of the present case
under 28 U.S.C. 1291 since the district court's order was a "final decision"
within the meaning of the statute. As we have pointed out, the Government's
application was not filed in a pending trial or criminal proceeding, but rather in
an independent plenary proceeding pursuant to the statutory provisions of Title
III, and the order of the district court denying the application was dispositive
thereof and had the requisite finality to make it appealable under section 1291.
See United States v. Wallace Co., 336 U.S. 793, 802, 69 S.Ct. 824, 93 L.Ed.
1042 (1949), and United States v. Calandra, 455 F.2d 750, 752 (6 Cir. 1972).
13
14
Counsel for the appellee suggest that the district court order is not final and
appealable, contending that 18 U.S.C. 2518(1)(e) permits the Government to
make successive applications to other judges of the district court in Maryland.
Section 2518(1)(e) provides in part as follows:
The legislative history of Title III does not amplify the meaning of this statutory
section, but in United States v. Bellosi, 163 U.S.App.D.C. 273, 276, 501 F.2d
833, 836 (1974), the court concluded that the legislative intent was "strictly to
We turn now to the appellant's contention that the district court erred in holding
that the Fourth Amendment required the Government to show a "paramount
interest" as a condition to judicial approval of a surreptitious entry to install a
listening device.
19
As an initial matter, we cannot accept the suggestion that we may elide the
Fourth Amendment issue on the ground that the Government had no statutory
power, with or without judicial permission, to secretly go on to private property
for the purpose of planting bugs. Nor, on the other hand, can the question be
avoided under the theory that once the district court found the interception of
the conversations to be allowable under Title III, the decision to secretly enter
the premises became a subsidiary tactical matter committed solely to the
judgment of the executing officers.
20
22
"Organized
criminals make extensive use of wire and oral communications in their
criminal activities. The interception of such communications to obtain evidence of
the commission of crimes or to prevent their commission is an indispensable aid to
law enforcement and the administration of justice." 82 Stat. 211, Section 801(c)
1968.
23
Moreover, the documented history of Title III is replete with references to the
evils of organized crime and the pressing need to apprehend its perpetrators
through the interception of their communications. S.Rep.No. 1097, supra,
reprinted at 1968 U.S.Code Cong. & Admin.News, p. 2112, et seq. Indeed, at
one point the Senate Committee on the Judiciary stated that "(t)he major
purpose of Title III is to combat organized crime." Id. at 70; 2157.
24
In our opinion, the fact that Title III does not expressly limit the manner of
installing listening devices is, in light of the announced legislative intent,
consistent with the conclusion that Congress implicitly commended the
question of surreptitious entry to the informed discretion of the district judge,
subject to the commands of the Constitution. Thus, where the Government
makes the showing required by section 2518, entitling it to an order authorizing
the interception of oral communications, surreptitious entry for the purpose of
implementing the interception is a statutorily viable technique. See United
States v. Agrusa, 541 F.2d 690 (8 Cir. 1976), cert. denied,429 U.S. 1045, 97
S.Ct. 751, 50 L.Ed.2d 759 (1977); United States v. Volpe,430 F.Supp. 931
(D.Conn.1977); United States v. Dalia, 426 F.Supp. 862 (D.N.J.1977); United
States v. Altese, supra; United States v. London, 424 F.Supp. 556 (D.Md.1976),
aff'd. on other grounds, 556 F.2d 709, sub nom United States v. Clerkley (4 Cir.
1977).
26
27
The district court was thus correct insofar as it subjected the request for
authorization of surreptitious entry to separate Fourth Amendment
consideration. Since in the absence of exigent circumstances the Fourth
Amendment commands compliance with the warrant requirement, we would
normally countenance secret entry by federal agents for the purpose of
installing, maintaining, or removing listening devices only under the following
conditions: (1) where, as here, the district judge to whom the interception
application is made is apprised of the planned entry; (2) the judge finds, as he
did here, that the use of the device and the surreptitious entry incident to its
installation and use provide the only effective means available to the
Government to conduct its investigation; and (3) only where the judge
specifically sanctions such an entry in a manner that does not offend the
substantive commands of the Fourth Amendment. Such a requirement is not
novel to the law of search and seizure. It also comports with the interception
scheme of Title III, since it is apparent that the legislature anticipated
meticulous judicial supervision of all aspects of electronic eavesdropping.
III
29
30 may differ, and many courts have differed, as to what is a reasonable search
"Men
and seizure, but it is beyond question that the Fourth Amendment only prohibits
unreasonable searches and seizures." United States v. Bobo, 477 F.2d 974, 978
(1973) (Emphasis supplied).
31
While the precise contours of the test of reasonableness vary from case to case,
it is clear that the test is designed
Significantly, the test "is not inflexible or obtusely unyielding to the legitimate
needs of law enforcement * * * ;" and there is room in the Fourth Amendment
to accommodate both the legitimate goals of law enforcement and the
individual's right of privacy in the area of electronic surveillance. United States
v. Bobo, supra, 477 F.2d at 979.
34
The test advanced by the lower court would permit the judiciary to substitute its
judgment for that of the legislature as to the nature and significance of the
public interest which justifies electronic surveillance. In Title III Congress
specified the criminal laws which federal authorities are authorized to
investigate by the interception of communications. 18 U.S.C. 2516(1), as
amended 1971. The statute contains no indication that the enforcement of any
one of these specified laws is more or less in the public interest than the similar
enforcement of the others. Yet, the "paramount interest" standard adopted by
the district court would ignore the statutory equation of the importance of
eavesdropping to the enforcement of the enumerated laws. Under such a
rationale, an investigation of a violation of the gambling laws, although
authorized by section 2516, would apparently never satisfy the paramountcy
requirement if conducted by means of eavesdropping devices secretly planted
even when the apprehension of an offender, as here, could not be accomplished
by other means. On the other hand, the use of secretly planted devices to
prevent the imminent bombing of an office building, likewise authorized by
section 2516, would evidently square with this application of the Fourth
Amendment to the statutory procedure.
35
36
37
With respect to the proposed entry, we are convinced that the manner in which
the Government proposes to plant the devices reasonably accommodates both
the public interest in criminal investigation and the interests of those
individuals who might entertain justifiable expectations that their premises will
not be physically invaded by outsiders. The public interest is demonstrated by
the finding of the district court that the investigation could proceed only by the
surreptitious installation of the device. The willingness of the Government to
abide by detailed guidelines as to the time and manner of entry, its assurance
that entry will be made only at a time when the premises are unoccupied, and
its acknowledgment that the scope of any such entry should not exceed its
limited purpose, impresses us as evincing a proper respect for those aspects of
privacy which are unrelated to the precise purpose of the statutory mission.
IV
38
39
The petition for a writ of mandamus (No. 77-1284) is denied. The order of the
district court in No. 77-1238 is reversed and the case is remanded to the district
court for further proceedings. On remand, the district court shall, upon a
showing by the government that the factual basis for its request for its order to
install three devices for the interception of oral communications at the locality
and upon the terms and conditions set forth in its application, including the
right to make surreptitious entry to install, maintain and remove the same, is
now substantially the same as that demonstrated at the time of the application,
issue the requested order.
40
In the Matter of the Application of the United States for an Order Authorizing
the Interception of Oral Communications, Misc. No. K-1051 (D.Md., Dec. 30,
1976)
The court found that confidential informants were unwilling to testify; that
some of the principal suspects avoided the telephone which local authorities
had tapped; that a search for incriminating records would prove fruitless; that
infiltration of the gambling operation would be impossible; and that physical
surveillance would be of limited value
See Application of United States, 427 F.2d 639, 641 (9 Cir. 1970)
See S.Rep., supra, 66-75, 1968 U.S.Code Cong. & Admin.News, pp. 21532163, surveying all pre-Title III Supreme Court eavesdropping decisions, with
special emphasis upon Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18
L.Ed.2d 1040 (1967). While the decision in Berger went off on other points,
the opinion clearly reveals that the interception under scrutiny was
accomplished by means of a bugging device surreptitiously planted in the target
office. 388 U.S. 45, 81, 96, 102, 110, 111, 87 S.Ct. 1873. The Court, however,
did not order the suppression of the collected evidence on that basis
But see United States v. Dalia, supra; United States v. Altese, supra, and United
States v. London, supra, taking the position that authorization of covert entry to
install bugging equipment is implicit in an order sanctioning only interception