U.S. v. Ramsey, 73-1580

• Citation: 503 F.2d 524
• Decision Date: 02 October 1974
• Docket Number: No. 73-1580,73-1580
• Parties: UNITED STATES of America Plaintiff-Appellee, v. Lester RAMSEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 524

503 F.2d 524

UNITED STATES of America Plaintiff-Appellee, v. Lester RAMSEY, Defendant-Appellant.

No. 73-1580.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1974.

Decided Aug 6, 1974, Rehearing Denied Oct. 2, 1974.

Sam Adam, Chicago, Ill., for defendant-appellant.

James R. Thompson, U.S. Atty., Michael D. Groark, Gary L. Starkman, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.

STEVENS, Circuit Judge.

This appeal presents the question whether the entire Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which establishes a statutory procedure for obtaining authority to engage in electronic eavesdropping, ¹ is unconstitutional 'on its face.' Appellant also argues that the wiretap conducted in this case violated the portion of the authorizing order which directed the agents to minimize the interception of nonincriminating statements; and that the trial court erred by failing to grant immunity to a defense witness who exercised his privilege against selfincrimination.

There is no dispute about the fact that critical evidence was obtained by means of a court-authorized wiretap, ² or about the sufficiency of the evidence supporting the jury verdict finding appellant guilty of conspiring to buy and sell heroin. ³ We treat appellant's arguments in order. ⁴

I.

In his facial challenge to the constitutionality of Title III, appellant argues, first, that authorization to listen continuously to all conversations over a given telephone for 30 days is in the nature of a general search warrant forbidden by the Fourth Amendment and, second, that since the statute fails to require that notice be given to every person whose conversations have been overheard, it confers impermissible authority to conduct secret searches. ⁵ These arguments have been considered and rejected by other circuits. ⁶

Appellant does not argue that the instant wiretap violated his own constitutional rights. ⁷ At the outset, therefore, we must consider whether appellant has standing to challenge the statute on the ground that its application to other persons in situations different from that before us might be unconstitutional. ⁸ Under traditional rules of constitutional adjudication, he is not entitled to raise such an objection. ⁹ Moreover, the Supreme Court has recently admonished us to construe exceptions to the traditional rules narrowly. Thus, in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct 2908, 37 L.Ed.2d 830, the Court stated: 'Application of the overbreadth doctrine . . . is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort.' 413 U.S. at 613, 93 S.Ct. at 2916. ¹⁰ Similarly, it appears that traditional rules should normally apply to a challenge based on grounds of vagueness. ¹¹

Nevertheless, in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, the Court allowed a facial challenge to the validity of a statute authorizing electronic eavesdropping. In support of its action, the Court said only the following:

'Since petitioner clearly has standing to challenge the statute, being indisputably affected by it, we need not consider either the sufficiency of the affidavits upon which the eavesdrop orders were based, or the standing of petitioner to attack the search and seizure made thereunder.' 388 U.S. at 55, 87 S.Ct. at 1882. While this sentence adequately explains why petitioner had standing under Article III of the Constitution, see, e.g., Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, it does not explain why petitioner was entitled to bypass the question of the constitutionality of the statute as applied. See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Notwithstanding the critical comments on the standing issue found in the separate opinions of Mr. Justice Stewart, ¹² Mr. Justice Black, ¹³ Mr. Justice Harlan, ¹⁴ and Mr. Justice White, ¹⁵ the majority neither identified the basis for its exception to traditional practice, ¹⁶ nor indicated whether a litigant may challenge a statute authorizing electronic eavesdropping no matter how tangential the statute's impact may be on his own constitutional rights. ¹⁷

The disposition of the standing issue in Berger would appear to be a departure from accepted tradition, ¹⁸ and somewhat inconsistent with Broadrick. Nevertheless, since Broadrick did not specifically disapprove of Berger, and since we are not sure Berger can fairly be distinguished from the present case, ¹⁹ we conclude that it is our duty to respect it as a viable precedent on the question of standing and to entertain appellant's challenge.

In a sense, deciding to entertain a facial challenge to a statute such as Title III is more easily said than done. For this statute merely provides safeguards for a procedure which might legitimately be undertaken without any statutory authorization at all. See Katz v. United States, 389 U.S. 347, 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576. ²⁰ Presumably, a declaration of facial invalidity would mean that even though the application of the statute in this and in comparable cases is permissible, there is a range of applications permitted by the statute which exceeds constitutional limitations. But what is the appropriate range? What, in other words, is the test for declaring an authorizing statute facially unconstitutional?

If we were to conclude, as apparently Judge Aldisert does in his careful opinion in United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973), that compliance with this statute will make it virtually impossible to violate the Fourth Amendment rights of any citizen, then surely the statute must be upheld. On the other hand, if we should conclude that there is a significant possibility that district judges will from time to time grant overly broad intercept authority without departing from any of the statutory safeguards, does it follow, as Judge Lord reasoned in Whitaker, that the entire statute must fall? ²¹ Or are we to engage in a form of balancing, attempting to weigh the probable number of impermissible applications of the statute against the number of cases in which it will be applied constitutionally, and then express an empirical judgment about its facial validity?

We find none of the above approaches acceptable and suggest, somewhat tentatively, a slightly different formulation. ²² Realistically, we think we must assume with Judge Lord that from time to time the statute will be applied unconstitutionally in specific cases and, indeed, that over the years the number of such applications may be significant. On the other hand, now that judges have the benefit of the opinion in Berger, reinforced by the statutory admonitions set forth in some detail after careful consideration of the implications of Berger by Congress, we think it is proper to presume that the statute will generally be applied in a constitutional manner.

In Berger the Supreme Court could properly have regarded the New York statute as giving rise to a quite different presumption-- one under which it might reasonably have been presumed that the normal administration of the Act would routinely lead to the entry of authorizations for 60-day continuous wiretaps. Such blanket authority to issue general warrants may be considered offensive to the Fourth Amendment without undermining the normal presumption of constitutionality to which we believe this carefully conceived Act of Congress is entitled.

We cannot say that the normal application of Title III will ordinarily lead to results condemned by the Fourth Amendment. ²³ Moreover, we are conscious that, even if the statute is susceptible of unconstitutional application, it does contain additional protections, not necessarily mandated by the Constitution, which would be forfeited by a holding of facial invalidity. ²⁴

Accordingly, without further enlarging upon the constitutional discussion in the many other judicial opinions analyzing Title III, we hold that it is not unconstitutional on its face.

II.

The statute provides that every order authorizing an intercept shall contain a requirement that the authorization be executed as soon as practicable and 'shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.' ²⁵ In this case, the order authorizing the interception contained a provision directing, in the language of the statute, that the interception of such communications be minimized. Appellant claims that, if he had been accorded a hearing on the issue in the district court, he might have established that the government violated its duty to minimize the interception of innocent conversations. ²⁶ He therefore argues that the district court erred in failing to hold such a hearing.

We are not at all sure that appellant made a sufficient factual showing to require the Court to hold a hearing to determine whether the government violated the minimization requirement in the order. But we assume arguendo that such a breach occurred. On that assumption we must decide whether appellant has standing to complain. The Second Circuit has held that only a subscriber to a telephone has such standing. United States v. Poeta, 455 F.2d 117, 122 (1972). A more liberal interpretation of the statutory purpose would suggest that Congress also intended to protect the privacy interests of members of the subscriber's family, possibly other regular users of the telephone, and conceivably any casual caller engaging in innocent conversation. But appellant fits none of these descriptions. He was a party to three long distance conversations with John Haygood, the subscriber, each of which related to the heroin transactions which were the specific target of the intercept order. Accordingly, we conclude that appellant's rights were not infringed even if the government failed to...