United States v. Ford

Decision Date23 April 1976
Docket NumberCrim. No. 76-55 to 76-59.
Citation414 F. Supp. 879
PartiesUNITED STATES of America v. Carroll D. FORD et al.
CourtU.S. District Court — District of Columbia

Daniel J. Bernstein, Asst. U. S. Atty., Washington, D. C., for United States.

Henry J. Monahan, Rockville, Md., for Carroll D. Ford.

James Lyons, Washington, D. C., for Wesley Dessaso.

Harry S. Weidberg, Charles J. Broida, Adelphi, Md., for Steve F. DaCosta.

Charles Barker, Washington, D. C., for Daniel Haile, Jr.

Orie Seltzer, Mt. Rainier, Md., for Melvin E. Smith and Thomas L. McColl.

George D. Gates, Washington, D. C., for James L. Smith.

Theodore J. Christensen, Washington, D. C., for Jerome Smith.

GESELL, District Judge.

MEMORANDUM AND ORDER

Motions to suppress are before the Court raising questions common to these five indictments in which eight defendants are charged with various narcotic drug offenses under the United States and District of Columbia Codes. The Government's proof is based in part on interceptions of oral communications made by the District of Columbia police after having placed transmitting devices inside the Meljerveen Ltd. Shoe Circus, an establishment located on Georgia Avenue, N.W., in Washington, D.C. The police acted under an order of another Judge of this Court1 authorizing the interceptions based on D.C.Code §§ 23-541 et seq. entitled "Wire Interception and Interception of Oral Communications," which is a local statute tracking the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq.

Defendants contend, among other things, that D.C.Code § 23-541 is unconstitutional as applied in this instance because, in the absence of limitations placed by the Code, the authorizing Judge did not restrict the manner of entry and gave unlimited authority for any number of entries to be made in connection with installation of the devices. This challenge to the warrant as overly broad is strenuously opposed. Testimony was taken and the issues must be resolved within the traditional procedural and substantive protections that have developed for implementing the strictures of the Fourth Amendment to the Constitution.

This is not a wiretap case where police intercept by a tap made outside the premises under surveillance. Rather, it is a "bugging" case involving entry into such premises and subsequent interception of conversations by a transmitting device installed inside. The questions presented are somewhat novel because a recently enacted statute is invoked and there are few "bugging" decisions. Before considering the legal issues, the Court will first outline what apparently occurred when the authorization was obtained and executed as developed at the suppression hearing.

The police, working closely with the United States Attorney, had concluded on substantial evidence that two or more defendants were operating a narcotic business primarily during night hours2 at the Meljerveen Ltd. Shoe Circus in Washington, D.C. The police were reliably informed that targets of the investigation apparently believed their telephone was tapped, and the police therefore sought means to "bug" the premises. Use of a spike mike or parabolic mike was considered impractical under the physical conditions pertaining at the site and discussion therefore focused upon how "bugs" might be installed in the premises themselves.

Before approaching the Judge, the U. S. Attorney's office considered simulating a nighttime break-in, a fire or postal inspection, and a bomb scare. Because of "Watergate" overtones, a break-and-enter was rejected and the decision made to use a bomb scare ruse to evacuate the premises, gain entry and effect the necessary installations.

This decision was orally presented to the Judge in chambers without a transcript by the U. S. Attorney's office and the Court took the view that any and all pretexts were reasonable, indicated no objection to the bomb scare ruse and left the entire decision as to method of entry to the police. Thereafter, the detective responsible for the affidavit in support of the application for the warrant was questioned on a transcript in chambers as to probable cause and instructed as to minimization. Based on the wholly sufficient affidavit and the detailed showing of probable cause, the Order (Misc. No. 75-159) authorizing interception of oral communications pursuant to D.C.Code § 23-547 was signed on September 4, 1975, at 11:20 a. m., without change in the undifferentiated form submitted by the U.S. Attorney. The authorization was to end in 20 days and the Order directed that an undesignated number of devices be placed "as soon as practicable." Minimization was required and the court directed that periodic progress reports be made on the fifth, tenth, fifteenth and twentieth days. Movants focus on paragraph (d) of the Order which reads as follows:

(d) Members of the Metropolitan Police Department are hereby authorized to enter and re-enter the Meljerveen Ltd. Shoe Circus located at 4815 Georgia Avenue, Northwest, Washington, D.C., for the purpose of installing, maintaining and removing the electronic eavesdropping devices. Entry and re-entry may be accomplished in any manner, including, but not limited to, breaking and entering or other surreptitious entry, or entry and re-entry by ruse and stratagem. (Emphasis supplied.)

The "bugs" were installed in about a half hour's time by a team of three or four police posing as a unit of the police bomb squad on September 5, around 11:30 a. m. On September 6, the police realized the "bugs" were not working and advised the U. S. Attorney who in turn advised the authorizing Judge. It was decided to re-enter on the same bomb scare ruse and install new "bugs," and the Judge approved. No transcript was taken.

The second entry was made in the same fashion as the first on September 10 about 1:30 p. m. and this time the interception worked. There were two functioning "bugs," both of the type that connected to AC current; one was on the store floor attached to an icebox which was near the point where the front sales room and a back storage-type room less frequented by the public adjoined and the second was attached to the overhead light of basement room where there was a type of lounge not open to the public.

Reports were made to the Judge on September 9, 15, 22 and 24. Minimization was conscientiously undertaken and the interception eventually terminated on the 20th day by another entry openly made under the warrant.

Thus it is apparent that the authorizing Judge was fully informed and maintained close scrutiny over what was taking place. A review of the jacket, Misc. No. 75-159, which records all papers relating to the interception, reflects the way the matter was monitored by the Judge.

The decisions under the Fourth Amendment or related statutes dealing with the installation of transmitting devices in private quarters to enable a continuous overhearing from the outside of what takes place inside are extremely few and not particularly instructive as guides for resolution of the instant case. Obviously the reasonableness of the search and seizure in this instance must withstand the closest scrutiny.

Where a search warrant issues for the seizure of specified contraband or evidence, there are statutory provisions in the District of Columbia governing execution. For example, an officer serving the warrant must announce his intention to enter and his identity. The time the warrant is executed is also generally limited to daytime unless a magistrate permits nighttime entry for cause shown. Moreover, upon entry the search is limited to specific, previously identified items. There is no re-entry. In contrast, the installation of a transmitting "bug" in private premises as a necessary condition precedent to the search and seizure of the subsequent oral communications must, in the nature of things, be proceeded by a covert entry of some kind. The existence of the warrant, the entry by the police, the safeguards of prior warning before the search commences, etc., must all be hidden from the private parties searched in order to carry out the purpose of the police under the authority of the warrant. There are no express statutory provisions in the District of Columbia authorizing covert entry by the police into private premises for the purpose of installing an overhearing device. Furthermore, there are no statutory provisions identifying the technique to be used for accomplishing such an installation nor are there any limitations placed by statute upon the type of ruse or technique that the police may or may not employ.

A search of the legislative history of both the Omnibus Crime Control and Safe Streets Act of 19683 and the District of Columbia Court Reform Act of 1970, which contains the applicable provisions of the D.C.Code, reveals that Congress did not focus on the fact that entry might be deemed necessary to place a "bug" and overhear oral communications. There is at best only oblique reference to this problem, e. g., Sen.Rep. No. 90-1097, 90th Cong., 2d Sess. 103 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112 ("A wiretap can take up to several days or longer to install. Other forms or devices may take even longer."). However, the D.C.Code and the federal statute, as amended in 1970,4 contain the following section:

An order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively . . .. 18 U.S.C. § 2518(4), D.C.Code § 23-547(f) (emphasis added).

While this amendment may suggest a lack of authority to break and enter, it is apparent that Congress in the course of its thorough inquiry into electronic surveillance was aware that "bugging"...

To continue reading

Request your trial
8 cases
  • United States v. Volpe
    • United States
    • U.S. District Court — District of Connecticut
    • March 15, 1977
    ... ... They also allege that the order failed to provide the kind of close judicial supervision or protective procedures over the installation, maintenance and removal of the electronic device, which Congress contemplated under the statute. The defendants cite as precedent United States v. Ford, 553 F.2d 146 (D.C.Cir. 1977), which affirmed the suppression order granted in 414 F.Supp. 879 (D.C. Cir. 1976). In Ford, the court found among other things that the intercept order failed to obtain court approval in advance of each intrusion, and no affidavit or transcript of oral evidence of ... ...
  • Dalia v. United States
    • United States
    • U.S. Supreme Court
    • April 18, 1979
    ... ... 13 ... Page 253 ... Absent covert entry, however, almost all electronic bugging would be impossible. 14 See United States v. Ford , 414 F.Supp. 879, 882 (D.C.1976), aff'd, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977); McNamara, The Problem of Surreptitious Entry ... Page 254 ... to Effectuate Electronic Eavesdrops: How Do You Proceed After the Court Says "Yes"?, 15 Am.Crim.L.Rev. 1, 3 (1977). As recently as 1976, a ... ...
  • U.S. v. Ford
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 11, 1977
    ... Page 146 ... 553 F.2d 146 ... 180 U.S.App.D.C. 1 ... UNITED STATES of America, Appellant, ... Carroll D. FORD ... UNITED STATES of America, Appellant, ... Wesley DESSASO a/k/a Wesley Dessaso, Jr ... ...
  • U.S., Application of
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 20, 1977
    ... Page 637 ... 563 F.2d 637 ... Application of the UNITED STATES for an Order Authorizing ... the Interception of Oral Communications, Appellant ... In re ... Ford, 414 F.Supp. 879, 883 (D.D.C.1976), aff'd 553 F.2d 146 (D.C.Cir.1977). See also United States v ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT