U.S. v. Finazzo

• Decision Date: 28 August 1978
• Docket Number: No. 77-5186,77-5186
• Citation: 583 F.2d 837
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Salvatore FINAZZO, Dominic J. Licavoli, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 837

583 F.2d 837

UNITED STATES of America, Plaintiff-Appellant, v. Salvatore FINAZZO, Dominic J. Licavoli, Defendants-Appellees.

No. 77-5186.

United States Court of Appeals Sixth Circuit.

Argued Dec. 16, 1977.

Decided Aug. 28, 1978.

James K. Robinson, U. S. Atty., Detroit, Mich., John L. Newcomer, Sp. Atty., Detroit

Strike Force, U. S. Dept. of Justice, Detroit, Mich., for plaintiff-appellant.

Ivan E. Barris, Michael H. Golob, Barris & Crehan, Detroit, Mich., for Finazzo.

S. Allen Early, Jr., Detroit, Mich., for Licavoli.

Before CELEBREZZE and MERRITT, Circuit Judges, and CECIL, Senior Circuit Judge.

MERRITT, Circuit Judge.

Under the 1968 eavesdropping statute, ¹ the FBI secured an interception order from a federal judge, and on the basis of incriminating evidence obtained from overhearing the defendant Finazzo's conversations at his office, the government charged him with a federal offense. The government appeals from a decision by Judge Damon Keith suppressing all the evidence obtained from electronic eavesdropping devices which FBI agents secretly installed by breaking into Finazzo's offices. We affirm the suppression order. We hold that judges do not have the power under the 1968 wiretapping statute to authorize breaking and entering in order to install electronic devices; and, in the absence of specific statutory authority, they do not have the power under the Fourth Amendment. We also hold that federal law enforcement agents do not have independent statutory or constitutional authority to engage in break-ins to install eavesdropping devices. No statute gives federal judges the power to authorize break-ins to plant eavesdrops; the judiciary does not have inherent power to delegate this authority to police officers; and police officers do not have that authority independently.

I. STATEMENT OF THE CASE

A. The Background of the 1968 Eavesdropping Statute

In 1928 the Supreme Court decided Olmstead v. United States, ² holding that the Fourth Amendment does not apply to wiretapping and bugging when wires are tapped or conversations are intercepted from outside the home or office. Relying on property concepts, the Supreme Court, in an opinion by Chief Justice Taft, held that the Fourth Amendment does not come into play unless there is an "actual physical invasion" of the premises. The separate dissents by Holmes and Brandeis are now considered landmarks. Holmes, calling wiretapping a "dirty business," said that he preferred "that some criminals should escape than that the government should play an ignoble part" by ignoring the Fourth Amendment. ³ The case prompted Brandeis to remark that government is "the potent, the omnipresent teacher," and "breeds contempt for law" and "invites anarchy" when it becomes the "law breaker." ⁴ The Fourth Amendment, according to Brandeis, protects privacy and therefore applies to eavesdropping whether or not there is a physical invasion of the premises. After the Olmstead case, Congress enacted the Communications Act of 1934 in which it forbade all surreptitious interception and disclosure of telephone and other wire communications, ⁵ but the Justice Department adopted the position that this statute allowed wiretapping so long as the information was not disclosed to persons outside the executive branch or used in judicial proceedings.

Forty years later in two cases, Berger v. New York and Katz v. United States ⁶ one reviewing an eavesdropping statute adopted by the state of New York and the other reviewing FBI bugging of a public telephone booth the Supreme Court finally reversed its position in Olmstead. The Court held that the Fourth Amendment protects privacy as well as property interests and that even in the absence of physical intrusion, electronic eavesdropping is sufficiently like a search to require the government to satisfy Fourth Amendment standards of probable cause and limitation of scope of the search.

B. The Structure of the 1968 Eavesdropping Statute

A year later Congress passed a new statute allowing, but carefully circumscribing, wiretapping and electronic surveillance by state, local and federal police officers. Congress attempted to satisfy the Fourth Amendment search warrant requirements of probable cause and limitation of scope in three ways:

1. It required federal law enforcement officers who apply for a federal judicial order authorizing interception of private conversations to furnish the federal judge with the following information: (a) a statement of the facts relied upon to justify a belief that an offense is being committed, the identity of the person involved and a description of the place and facilities at which the communication is to be intercepted; (b) the investigative reasons electronic surveillance is needed, including a statement of other investigative procedures that have been tried and have failed or that appear unlikely to succeed; (c) a statement of the period of time for which the interception is to continue. ⁷

2. Before issuing an intercept order under the Act, the federal judge must find: (a) there is probable cause to believe that a person is committing or has committed a particular offense covered by the Act; (b) there is probable cause to believe that a particular communication concerning the offense will be obtained through the interception; (c) other investigative procedures have failed or appear unlikely to succeed; (d) there is probable cause to believe that the facilities or place from which the communication is to be intercepted are being used in connection with the commission of the offense. ⁸

3. Finally, the interception order itself must include the following: (a) the identity of the person whose communication is being intercepted; (b) a description of the place and facilities at which the communication is to be intercepted; (c) a particular description of the kind of communication sought to be intercepted; (d) the identity of the government agency authorized to intercept the communication; (e) the time period during which the interception is to continue. ⁹

This carefully constructed statute is curiously silent, however, on the method for installing eavesdropping devices. The statutory scheme is elaborate, carefully circumscribing powers of judicial and police officers, but it does not mention or authorize secret entry or break-ins in the execution of warrants.

Senator Morse, an opponent, and Senator Tydings, a supporter, said on the Senate floor that break-ins might be necessary to install eavesdrops. ¹⁰ But if Congress intended to allow such conduct under an intercept order, the lawmakers did not believe that they needed to write it into the statute. The Committee reports do not mention or sanction breaking and entering, and neither the House nor the Senate publicly confronted, debated or deliberated about the question.

C. Facts Relating to the Intercept Order and the Break-in in the Instant Case

Based in part on conversations overheard in Finazzo's office, defendants Finazzo and Licavoli, and three others were indicted in April, 1975, for bribery of a federal public official. ¹¹ The supervisor of the surety guarantee program of the Small Business Administration in Washington allegedly received an $18,000 bribe from a Cleveland construction company. In exchange for the bribe, the federal official arranged a Small Business Administration guarantee or surety bond which the company needed for a $3 million construction project. When the builders later failed to pay the bribe, the federal official hired Finazzo and Licavoli to collect it.

Federal agents installed the eavesdropping devices in Finazzo's offices at AAA Store Fixtures, Inc., in Detroit, pursuant to a warrant issued by the District Court in accordance with the requirements of the 1968 Act. The FBI planted the listening devices as a part of an investigation of loan sharking and apparently learned of the bribe and the collection efforts accidentally by listening to conversations among the defendants. The District Court granted the motion of Finazzo and Licavoli to suppress all evidence obtained through these hidden transmitters on the grounds that federal agents who executed the warrant were not authorized surreptitiously to break and enter Finazzo's offices to install the transmitters.

Federal agents first applied in September, 1975, for court authorization to intercept telephone and oral conversations at Finazzo's offices. The application and accompanying affidavit specified which telephone lines would be intercepted and described particularly the location of several offices on the premises where the agents believed that Finazzo and others operated a loan shark business. An attached diagram of the building showed the exact positions of the telephone which would be tapped and the locations in the warehouse where hidden microphones would be placed to broadcast the suspects' conversations. Although installation of the transmitting equipment presumably required the agents secretly to enter the building, the government's eavesdropping application did not expressly describe how installation would be accomplished. The government contends that the District Judge understood that installation of the electronic devices would require forcible entry and implicitly authorized this procedure when he issued the warrant permitting electronic surveillance.

AAA Store Fixtures, Inc., located in an industrial area of Detroit, is a commercial building consisting primarily of a warehouse and offices. Federal agents who had observed the building for several months decided that "the only satisfactory way" to install eavesdropping devices was to break into the offices at night when the building was vacant and unguarded. Department of Justice attorneys advised that the court order implicitly authorized the agents to execute the warrant "by forcible and surreptitious means if this was the only reasonable way to install the microphones":

Therefore (according...