United States v. Harvey
Decision Date | 14 February 1983 |
Docket Number | No. 82-73-Cr-SMA.,82-73-Cr-SMA. |
Parties | UNITED STATES of America, Plaintiff, v. William Joseph HARVEY, et al., Defendants. |
Court | U.S. District Court — Southern District of Florida |
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Stanley Marcus, U.S. Atty., S.D. Fla., by Neil Karadbil, Asst. U.S. Atty., Miami, Fla., for plaintiff.
James Jay Hogan, Joseph Beeler, Miami, Fla., for defendants.
ORDER DENYING MOTIONS TO SUPPRESS TITLE III ELECTRONIC SURVEILLANCE AND EVIDENCE DERIVED THEREFROM AND INCLUDING DENIAL OF MOTION TO SUPPRESS STATE TITLE III WIRE INTERCEPT AND EVIDENCE DERIVED THEREFROM
Defendants WILLIAM JOSEPH HARVEY, THOMAS SIKES and DENNIS KAY1 addressed Motions to Suppress electronic surveillance and any evidence derived therefrom to a Title III oral intercept of communications of William Joseph Harvey, John Dennis Cason, Robert Jernigan, Bruce Emory Griffin, Wesley Simkins, Mike McCrary, Skip Hope, Arthur Michael Sakell, Joseph William Campbell, Jr., Gary Balough and Parker Peak, at the office of William Joseph Harvey, Defendant, located at 1945 South Dixie Highway, Delray Beach, Florida, a towing business conducted by Delray Towing Service, Inc., of which Harvey was alleged to be president.
The Honorable Eugene P. Spellman, U.S. District Judge, Southern District of Florida, entered the original order authorizing interception on October 20, 1980, for thirty (30) days (Defendant's Exhibit No. 4); an amended order on October 22, 1980 (Defendant's Exhibit No. 5); an order authorizing continued interception of oral communications for an additional thirty (30) days on November 20, 1980 (Defendant's Exhibit No. 16); and an order continuing interception for an additional thirty (30) days signed on December 19, 1980 (Defendant's Exhibit No. 26). The oral intercept commenced functioning on October 24, 1980, and remained in position and functioning until January 19, 1981.
A multitudinous attack has been made upon this Title III intercept. After reviewing extensively the original motions, all supplements thereto then pending, and the Government's omnibus response, this Court heard testimony and received evidence basically addressed to three (3) evidentiary issues, to-wit:
All other matters raised by the Defendants in these Motions to Suppress were legal issues and were heard extensively in oral arguments. The evidentiary hearings were conducted over a period of four days and oral argument thereon lasted one full day. Thereupon, having now considered the original Motion of William Joseph Harvey, five (5) Supplements thereto, the Motions of Thomas Sikes and Dennis Kay and all Supplements thereto, and considering the joinder therein of all co-defendants who are "aggrieved" persons, the Government's omnibus response, the testimony and evidence adduced and oral arguments, and being otherwise fully advised in the premises, it is thereupon
ORDERED AND ADJUDGED that each and every Motion to Suppress the Title III oral intercept and the evidence derived therefrom, and including Motions to Suppress the Florida Chapter 934 wire intercept and evidence derived therefrom, addressed by each and every Defendant entitled to do so by law is hereby DENIED, each respectively, for the reasons hereinafter set forth.
Findings of Fact and Conclusions of Law are made herein when applicable and required for those matters as to which testimony and evidence were received at an evidentiary hearing.
In its memorandum in support of the Motion to Suppress (p. 23) Defendant Harvey In United States v. Sklaroff, 506 F.2d 837 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975), the Fifth Circuit joined in the holdings of other circuits that Title III meets the constitutional tests for electronic surveillance set forth by the U.S. Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1966). See also United States v. Tortorello, 480 F.2d 764 (2nd Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974). The statute in question is constitutional.
18 U.S.C. § 2516 provides that the Attorney General or any Assistant Attorney General specifically designated by the Attorney General may authorize an application for a wiretap. Here, authorization was given by Assistant Attorney General Philip B. Heymann (in charge of the Criminal Division) pursuant to Order No. 799-78 entered by Attorney General Griffin Bell on August 15, 1978 (Defendant's Exhibit No. 21). In August, 1979, Attorney General Benjamin Civiletti succeeded the Honorable Griffin Bell as Attorney General, although no new Order was issued prior to the wiretap authorization nor was the August 15, 1978 Order revoked. Two courts have specifically addressed the contention of Defendants which attempts to narrowly construe wiretap authorization from being exercised by any individuals other...
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