553 F.2d 146 (D.C. Cir. 1977), 76-1467, United States v. Ford

Docket Nº:76-1467, 76-1468, 76-1501 to 76-1503.
Citation:553 F.2d 146
Party Name:UNITED STATES of America, Appellant, v. Carroll D. FORD. UNITED STATES of America, Appellant, v. Wesley DESSASO a/k/a Wesley Dessaso, Jr. UNITED STATES of America, Appellant, v. Steve F. DaCOSTA. UNITED STATES of America, Appellant, v. Daniel HAILE, Jr. UNITED STATES of America, Appellant, v. Melvin E. SMITH et al.
Case Date:February 11, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 146

553 F.2d 146 (D.C. Cir. 1977)

UNITED STATES of America, Appellant,

v.

Carroll D. FORD.

UNITED STATES of America, Appellant,

v.

Wesley DESSASO a/k/a Wesley Dessaso, Jr.

UNITED STATES of America, Appellant,

v.

Steve F. DaCOSTA.

UNITED STATES of America, Appellant,

v.

Daniel HAILE, Jr.

UNITED STATES of America, Appellant,

v.

Melvin E. SMITH et al.

Nos. 76-1467, 76-1468, 76-1501 to 76-1503.

United States Court of Appeals, District of Columbia Circuit

February 11, 1977

Argued Sept. 21, 1976.

Page 147

Robert M. McNamara, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Daniel J. Bernstein, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellant.

James L. Lyons, Washington, D. C. (appointed by this court), for appellee in No. 76-1468; also argued for appellees in Nos. 76-1467 and 76-1503.

Robert E. Walter, Jr., Arlington, Va., for appellees in Nos. 76-1501 and 76-1502.

Henry J. Monahan, Rockville, Md. (appointed by this court), was on the brief for appellee in No. 76-1467.

Theodore J. Christensen, Washington, D. C. (appointed by this court), was on the brief for appellees in No. 76-1503.

Charles J. Broida, Columbia, Md., was on the brief for appellee in No. 76-1501.

Charles F. Barker, Washington, D. C. (appointed by this court), was on the brief for appellee in No. 76-1502.

Orie Seltzer, Washington, D. C., entered an appearance for appellee Melvin E. Smith in No. 76-1503.

Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges.

Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.

J. SKELLY WRIGHT, Circuit Judge:

The District Court for the District of Columbia granted motions to suppress certain evidence gathered by electronic surveillance

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of appellees' conversations. On this appeal by the Government 1 from that ruling the facts are not in dispute.

From early 1975 members of the Narcotics Branch of the Metropolitan Police Department suspected that the Meljerveen Ltd. Shoe Circus, a shoe store in Northwest Washington, D. C., was the locus of narcotics distribution activity. Over a period of months these suspicions were corroborated by information received through intermittent physical surveillance of the store and from informants, some of whom made controlled purchases of narcotics there. 2 The police concluded that the narcotics operation was extensive, but they were unable to gather sufficient information as to the persons involved. 3 Therefore, they decided to seek a court order authorizing electronic surveillance. 4 Their information indicated that the proprietor of the Shoe Circus and prime suspect, Melvin E. Smith, mistakenly believed his telephone was already under surveillance, i. e., the object of a wiretap order, and that, therefore, he would not discuss narcotics activity over the telephone. 5 The police concluded that under the circumstances a wiretap would be fruitless, so a decision was made to seek judicial authority to install eavesdropping devices "bugs" inside the premises. 6

On September 4, 1975 an Assistant United States Attorney and a Metropolitan Police Department Narcotics Branch detective 7 approached a judge of the District Court and presented to him a lengthy affidavit of probable cause and a surveillance order prepared for his signature. The Assistant United States Attorney informed the authorizing judge, off the record, that the police intended to effect entry into the Shoe Circus by means of a bomb-scare

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ruse. 8 After questioning the detective on the issue of probable cause and instructing him as to statutory minimization, 9 the authorizing judge signed the intercept order submitted by the Assistant United States Attorney.

In accordance with the provisions of the District of Columbia Code governing capture of wire and oral communications, the 20-day 10 intercept order called for minimization and periodic progress reports to the authorizing judge. 11 Unlike most electronic surveillance orders which authorize strictly non-trespassory wiretaps 12 this warrant permitted an undesignated number of "bugs" to be placed inside the Shoe Circus "as soon as practicable." 13 Paragraph (d) of the intercept order read:

(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

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in any manner, including, but not limited to, breaking and entering or other surreptitious entry, or entry and re-entry by ruse and stratagem.

Intercept order at 3, JA 45 (emphasis added). Acting pursuant to this authorization, police posing as a unit of the bomb squad appeared at the Shoe Circus on September 5. The store was evacuated and three "bugs" were installed, with at least one of the devices being placed in an area of the store not open to the general public. The operation lasted approximately half an hour.

It appears that on the following day police assigned to monitor conversations taking place inside the Shoe Circus discovered that none of the devices was transmitting. The Assistant United States Attorney was notified, and he in turn informed the authorizing judge. Remarking that there was, in his opinion, little likelihood of successful re-entry by means of another bomb-scare ruse, the authorizing judge nevertheless apparently concurred in the Assistant United States Attorney's plan. No record was made of these entirely informal conversations. Again using a bomb-scare ruse, police made a second daytime entry on September 10, 1975 and installed two additional devices, one in a non-public area. This time the devices did not malfunction, and during the next five weeks the police successfully monitored numerous narcotics-related conversations.

There is no indication that any further entries were made until October 15, 1975, when, prior to the expiration of an extension order issued September 26, 1975, the police entered without subterfuge to remove the listening devices. The intercepted conversations were subsequently presented to the grand jury. On February 6, 1976 indictments were issued charging appellees with various narcotics-related offenses. 14 Appellees moved to suppress the electronic surveillance evidence, and a hearing was held 15 at which the Government vigorously contended that this essential element of the prosecution's evidence had been validly seized. In a memorandum and order dated April 23, 1976 the District Court granted appellees' motions to suppress. United States v. Ford, 414 F.Supp. 879 (D.D.C.1976). The instant appeal ensued.

I

The District Court found that the police had received reliable information and had concluded on "substantial evidence" 16 that a narcotics business was being operated, primarily during night hours, at the Shoe Circus. It determined that the authorizing judge had been furnished a detailed showing of probable cause, 17 and had been kept fully informed of police actions taken under

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the authority of the intercept order. 18 The court concluded that in enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the parallel provisions of the District of Columbia Code 19 Congress intended to confer jurisdiction on the courts to authorize covert entry by police for the purpose of installing eavesdropping devices. 20 Thus the District Court ruled by implication that certain statutory safeguards governing execution of search warrants issued for seizure of specified items were inapplicable in this case. 21 It reasoned, however, that the total absence of statutory limitations or restrictions on entry of private premises to install "bugs," 22

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combined with the continuous and undiscriminating nature of the seizure, 23 placed an "extraordinarily heavy burden" 24 on the authorizing judge to tailor his order narrowly and thereby minimize the scope of the total intrusion.

According to the District Court, the order in question failed to meet these criteria. Since no formal record of any of the discussions between the Assistant United States Attorney and the authorizing judge had been made, the intercept order had to stand or fall on its own terms, 25 which were impermissibly overbroad. The court discussed the authorization necessary in this type of case:

A warrant must be specific. * * * Where more than one entry is involved each intrusion must be treated formally and approved in advance so that the judge or magistrate can supervise when and how the entry is to be accomplished. * * * The authorization given in this instance did not limit the number of entries nor did it specify either the general time or manner of entry. Thus the authority given was far too sweeping.

United States v. Ford, supra, 414 F.Supp. at 884. The court held that because the authorization was invalid the District of Columbia Code mandated suppression of the evidence obtained by the electronic surveillance.

II

The Fourth Amendment states:

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.

The present case implicates two distinct aspects 26 of the Fourth Amendment: unconsented physical entry into private premises

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27 and recording of oral statements. 28 We deal primarily with the first...

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