United States v. Perillo

• Decision Date: 02 September 1971
• Docket Number: 2123.,Crim. A. No. 2104-2106
• Citation: 333 F. Supp. 914
• Court: U.S. District Court — District of Delaware
• Parties: UNITED STATES of America, Plaintiff, v. William J. PERILLO et al., Defendants.

333 F. Supp. 914

UNITED STATES of America, Plaintiff, v. William J. PERILLO et al., Defendants.

Crim. A. Nos. 2104-2106, 2123.

United States District Court, D. Delaware.

September 2, 1971.

F. L. Peter Stone, U. S. Atty., Wilmington, Del., for plaintiff.

Harold Leshem, of Booker, Leshem, Green, Shaffer, Berl & Wise; Morton R. Kimmel; William C. Bradley, Jr., and Norman N. Aerenson, of Aerenson, Balick & Balick; John E. Babiarz, Jr., of Biondi & Babiarz, and Jay Conner, of Conner & Daley, Wilmington, Del., for defendants.

OPINION

LAYTON, District Judge.

The defendants in four criminal actions have moved to suppress certain evidence, i. e., telephone calls and other materials, obtained pursuant to Title 18 U.S.C. §§ 2510-2520¹ upon the ground that said statute, pursuant to which the evidence was seized, is unconstitutional.

Defendants' motion is based upon two wiretaps and pen registers (mechanical devices which record numbers dialed from specific telephones). On December 7, 1970, in accordance with procedures set out in § 2518, Judge Latchum of this Court, based upon a showing of probable cause, authorized the installation of a tap and pen register for ten days on a telephone registered in the name of George M. Hickman, 1500 E. Ayre Street, Newport, Delaware. Again, on December 13, 1970, the Court authorized the wiretap of another telephone registered to Hickman at 217 W. 18th Street, Wilmington, Delaware.

In both applications for a wiretap, the only individual specifically named was defendant, Perillo. However, the case against certain of the defendants is based upon evidence obtained against them as a result of the two wiretap and pen registers authorized against defendant, Perillo.

Before considering the specific questions challenging the validity of the statute, certain general observations should be made. While no decision of the Supreme Court has held wiretapping unconstitutional per se, this backstairs manner of obtaining evidence is inherently offensive to the Anglo-Saxon mind and can only be condoned because of the constant and ever-increasing struggle between the criminal and law enforcement elements of our society. Wiretapping and "bugging" constitute a potential encroachment upon certain zones of personal privacy about which the Supreme Court has commented on several occasions. Thus, in Stanley v. Georgia,² the Court held that it was unconstitutional to make the mere private possession of obscene materials a crime because an individual has a:

"* * * right to be free, except in very limited circumstances from unwanted governmental intrusions into one's privacy."³

In Griswold v. Connecticut,⁴ the Court, in holding that the Connecticut statute prohibiting the use of contraceptives was unconstitutional, held that some of the Amendments to the Constitution create areas of privacy which must be free from governmental intrusion.⁵ In Camara v. Municipal Court,⁶ which held that a person could refuse a code-enforcement inspection of his personal residence without a warrant, the Court stated that the basic purpose of the Fourth Amendment:

"* * * is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."⁷

It is against this policy recognizing "the sanctity of a man's home and the privacies of life"⁸ and minimizing instances of unwanted governmental intrusions, that the commands of the Fourth Amendment must be interpreted. The Fourth Amendment states that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."⁹

Under the terms of the amendment, then, every search must be reasonable and conducted under the authority of a proper warrant.

Even if wiretapping is reasonable, however, it still may be irreconcilable with the requirements of the warrant clause of the Fourth Amendment. The Supreme Court has taken occasion to comment on these questions in considering related issues of wiretaps and electronic surveillance in three recent cases.

In Osborn v. United States,¹⁰ petitioner, a lawyer, was indicted for attempting to bribe a member of a jury panel. He had hired an investigator to delve into the backgrounds of the prospective jurors. Upon being advised by the investigator that he had a relative on the panel, the petitioner manifested a desire to make contact with that member of the panel. Having reported to federal agents the aims of the lawyer, an affidavit was drawn up and presented to two District Court judges, who authorized the use of an electronic device to record further conversations between petitioner and the investigator. Such a recording was made and held admissible by the Supreme Court.

The Osborn case is not precedent for expansive or continuous electronic surveillance due to several factors. First, the investigator could, and did, testify to the conversations he had carried on with the petitioner including the one on which a bug was used. Thus the tape recording was corroborating evidence.¹¹ The District Court judges had authorized the agents of the FBI to conceal a recorder on the investigator:

"* * * in order to determine from recordings of further conversations between Vick and the petitioner whether the statements in Vick's affidavit were true."¹²

Second, the authorization was issued upon a "detailed factual affidavit alleging the commission of a specific criminal offense", and with a "particularized purpose",¹³ for a short period of time; i. e., a single meeting between the petitioner and the investigator. Thus, the limited duration, strong showing of probable cause, and the very particularized scope of the search made it reasonable in the eyes of the Supreme Court.

Nor does Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) condemn wiretapping as unconstitutional. That decision turned on the failure to obtain a search warrant.

In that case, petitioner was convicted of transmitting wagering information across state lines. FBI agents had attached a listening device to a pay phone which petitioner was using and thus recorded his end of the conversations, and subsequently introduced the recording at trial as evidence. Writing for the majority, Justice Stewart stated that the eavesdropping violated the privacy which Katz had justifiably relied on and, therefore, in the absence of a search warrant, infringed upon his Fourth Amendment rights.¹⁴ But since the right to privacy is not an absolute right, the question turns on whether or not the invasion of Katz' privacy was reasonable.

Clearly, the Court found that there was no "fishing expedition" here:

"They FBI agents did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information. * * *"¹⁵

The surveillance was limited, both in scope and duration:

"* * * to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, and they took great care to overhear only the conversations of the petitioner himself."¹⁶

Nevertheless, the Court reversed, holding that under such conditions a magistrate could and should have issued a search warrant authorizing a search and seizure.¹⁷ Had the agents gone before a magistrate, the limited duration and scope of the proposed search and the strong showing of probable cause would in all probability have resulted in their obtaining a warrant and carrying out a reasonable search. Thus, the Supreme Court has clearly held that electronic searches and seizures are reasonable if they are made to adhere strictly to the demands of the warrant clause of the Fourth Amendment.

This brings us to Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L. Ed.2d 1040 (1967), by far the most important and relevant decision in this area. There a majority of five justices struck down as unconstitutional a New York eavesdropping statute (Section 813-a of the New York Code of Criminal Procedure) because it was "* * * too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area."¹⁸

First, the majority decided that the language of the New York statute was probably not equivalent to the "probable cause" requirement of the Fourth Amendment, a debatable decision but of no significance in the case at bar because § 2518 substitutes the words "probable cause" for "reasonable ground" used in the New York statute.

Secondly, it contained no requirement for particularity in the warrant regarding the specific crime committed, "the place to be searched", or "the persons or things to be seized." The Court felt that given the inherent nature of electronic surveillance, these safeguards were particularly necessary,¹⁹ and contrasted the deficient requirements of the New York statute with the procedures undertaken in Osborn.²⁰

Third, the statute did not limit the surveillance to one limited intrusion, nor did it require prompt execution of the warrant.²¹

Fourth, the statute authorized eavesdropping for up to a two-month period, which the Court characterized as the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause.²²

Fifth, because an extension of undefined duration was authorized by the statute on a bare showing that such prolongation be "in the public interest."²³

Sixth, the statute placed no mandatory termination on the wiretap once conversations sought were seized.²⁴

Seventh, the statute had no requirement for notice, "nor does it overcome this defect by requiring some showing of special facts."²⁵ Thus, ...