United States v. Sinclair

• Decision Date: 26 January 1971
• Docket Number: Crim. No. 44375.
• Parties: UNITED STATES of America, Plaintiff, v. John SINCLAIR, Lawrence Robert "Pun" Plamondon, John Waterhouse Forrest, Defendants.
• Court: U.S. District Court — Western District of Michigan

321 F. Supp. 1074

UNITED STATES of America, Plaintiff, v. John SINCLAIR, Lawrence Robert "Pun" Plamondon, John Waterhouse Forrest, Defendants.

Crim. No. 44375.

United States District Court, E. D. Michigan, S. D.

January 26, 1971.

Ralph B. Guy, Jr., U. S. Atty., J. Kenneth Lowrie and John H. Hausner, Asst. U. S. Attys., for plaintiff.

Leonard Weinglass, Newark, N. J., for John Sinclair.

William M. Kunstler, New York City, for Lawrence R. Plamondon.

Hugh M. Davis, Jr., Detroit, Mich., for John Waterhouse Forrest.

AMENDED

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR DISCLOSURE OF ELECTRONIC OR OTHER SURVEILLANCE

KEITH, District Judge.

After the return of the indictment in the present case, but before the commencement of trial, counsel for the defendants filed a motion for disclosure of electronic surveillance in accordance with the United States Supreme Court's holding in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In essence, the motion requests an order from the Court directing the Government to divulge to defendants all logs, records, and memoranda of electronic surveillance directed at any of the defendants or co-conspirators not indicted. It further requests that a hearing be held to determine whether any of the evidence upon which the indictment is based or which the Government intends to introduce at trial is tainted by such surveillance. In response to this motion the Government submitted an answer which stated that at that time the Government had no knowledge of any electronic surveillance pertaining to any of the defendants but that a further inquiry was then being conducted with the Federal Bureau of Investigation. In its answer the Government stated that the United States Attorney's Office would advise the Court if and when any evidence of electronic monitoring was discovered and, in such event, would file a reply to the defendants' motion to disclose.

Subsequently, the Court received an affidavit signed by the United States Attorney General, John N. Mitchell, stating that he had authorized and deemed necessary the wiretapping of certain of defendant Plamondon's conversations. Sealed records and files were submitted with this affidavit for the review and inspection of the Court in camera. Also accompanying these materials was a motion to dismiss the defendants' request for disclosure of the surveillance evidence and a brief in support of said motion. In both the affidavit and the above-stated brief the Attorney General has certified that public disclosure of the particular facts concerning this surveillance would prejudice the national interest. It has therefore been requested by the Government that it be notified prior to any decision regarding disclosure so that it can determine how it will proceed with the case. Defendants have submitted reply briefs in support of their position that this electronic evidence must be submitted to them for their examination. Oral argument was heard regarding this issue on January 14 and 16, 1971.

In Alderman v. United States, supra, the Supreme Court held that the Government must disclose and make available to a defendant who has the proper standing, any conversations he participated in or that occurred on his premises which the Government overheard during the course of any illegal electronic surveillance. The clear purpose of this ruling is to reinforce the long-standing exclusionary rule of the Fourth Amendment which prevents the Government from building its case upon evidence which is obtained by unconstitutional methods. In the instant case, since defendant Plamondon was a party to the monitored conversation, he has the requisite standing to object to the evidence and to request disclosure. See Alderman, supra, at 176, 89 S.Ct. 961. It thus becomes necessary to determine whether the surveillance involved herein was in violation of the defendant's Fourth Amendment rights. Disclosure is necessary only when the District Court determines that the surveillance was conducted illegally. Concurring Opinion of Mr. Justice White in Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1968).

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon's conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security. The validity of the Government's position on this issue, under the Fourth Amendment, has not yet been decided by the Supreme Court. See Footnote 23 in Katz v. United States, 389 U.S. 347, 358, 88 S.Ct. 507, 19 L.Ed.2d 576. There have been, however, a few District Court cases which concern themselves with this issue. In presenting its oral argument the Government relies heavily upon United States v. Felix Lindsey O'Neal, Criminal No. KC-CR-1204 (D.C.Kan., September 1, 1970), a case in which the District Judge made an in-court ruling that surveillance pursuant to the authorization of the Attorney General was lawful. See, also, United States of America v. Dillinger, Criminal No. CR 180 (N.D.Ill., February 20, 1970); United States v. Clay, 430 F.2d 165 (5th Cir. 1970) cert. granted, 400 U.S. 990, 91 S. Ct. 457, 27 L.Ed.2d 438.

Particularly noteworthy, and the basis of defendants' oral argument in support of their motion for disclosure, is the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971). The affidavit and circumstances which were represented before Judge Ferguson are identical to the affidavit and issues now before this Court for consideration, and the Court is compelled to adopt the rule and rationale of the Smith case in reaching its decision today.

The great umbrella of personal rights protected by the Fourth Amendment has unfolded slowly, but very deliberately, throughout our legal history. The celebrated cases of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), became the cornerstone of the Amendment's foundation and together these two decisions set the precedent for the rule that evidence secured in violation of a defendant's Fourth Amendment rights may not be admitted against him at his trial. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (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 admission of any fruits derived from illegally seized evidence. The final buttress to this canopy of Fourth Amendment protection is derived from the Court's declaration that the Fourth Amendment protects a defendant from the evil of the uninvited ear. In Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L. Ed.2d 734 (1961), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed.2d 576, the Court ruled that oral statements, if illegally overheard, and their fruits are also subject to suppression.

In the instant case the Government apparently ignores the overwhelming precedent of these cases and argues that the President, acting through the Attorney General, has the inherent Constitutional power: (1) to authorize without judicial warrant electronic surveillance in "national security" cases; and (2) to determine unilaterally whether a given situation is a matter within the scope of national security. The Court is unable to accept this proposition. We are a country of laws and not of men.

The Government contends that the President can conduct warrantless surveillances under the authority of the Omnibus Crime Control and Safe Streets Act of 1968. The effect of this comprehensive statute is to make unauthorized surveillance a serious crime. 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 permits the President to legally authorize electronic surveillance "to obtain foreign intelligence information deemed essential to the security of the United States."

The Act also provides:

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 of 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 obtain foreign intelligence information deemed essential to the security of the United States, or to protect national

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