United States v. Torres

• Decision Date: 16 January 1984
• Docket Number: 1-4.,No. 83 CR 494,83 CR 494
• Citation: 583 F. Supp. 86
• Parties: UNITED STATES of America, Plaintiff, v. Alejandrina TORRES, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

583 F. Supp. 86

UNITED STATES of America, Plaintiff, v. Alejandrina TORRES, et al., Defendants.

No. 83 CR 494, 1-4.

United States District Court, N.D. Illinois, E.D.

January 16, 1984.

COPYRIGHT MATERIAL OMITTED

Daniel K. Webb, U.S. Atty., Joseph H. Hartzler, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Michael E. Deutsch, Dennis Cunningham, Melinda Power, David C. Thomas, Chicago, Ill., for defendants.

Memorandum

LEIGHTON, District Judge.

In this superseding eight-count indictment, Alejandrina Torres, Edwin Cortes, Alberto Rodriguez, and Jose Rodriguez, are charged with seditious conspiracy and related offenses against the United States. They move to suppress evidence which government agents obtained as a result of electronic surveillances purportedly authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520.

The parties have been heard; they have filed written submissions; and oral summations have been made by their counsel. Orally from the bench, the court made its findings of fact, reached conclusions of law, and entered an order which, in part, sustained the motion to suppress. This memorandum summarizes the procedural background of this case, including the motions to suppress, and makes more explicit and definite the court's oral findings and conclusions.

I

A. The Procedural Background

Defendants were all arrested on the same day, June 29, 1983, in the City of Chicago; and thereafter, at a preliminary hearing before a magistrate of this court, bail was set for Alejandrina Torres at $5 million cash and for each of the other defendants, cash bail of $10 million. On July 6, 1983 a one-count indictment was returned, charging that between June 14, 1975 and June 29, 1983, the exact dates being unknown to the Grand Jury, defendants and one William Morales wilfully and knowingly became members of and participants in a conspiracy formed by a clandestine group "known as the Fuerzas Armadas de Liberacion Nacional Puertorriquena (Armed Forces of Puerto Rican National Liberation) or FALN."

The indictment alleged that between June 14, 1975 and November 25, 1979, as a part of the conspiracy, "the conspirators would seek to achieve their goals and thereby oppose ... the authority of the government of the United States by means of force, terror and violence, including the construction and planting of explosive and incendiary devices at banks, stores, office buildings and government buildings,..." located in the metropolitan area of the City of Chicago.

Each defendant was arraigned; this Court set a schedule for the pretrial conference and the filing of pretrial motions under local criminal rules. On July 29, 1983, Jose Rodriguez moved for reduction of his bond; and in answering his allegations, the government made a written submission in which it disclosed that in the course of its investigations of defendants and this case, applications for, and renewals of, authorizations had been made to the Chief Judge of this court for orders which permitted the interception of wire and oral communications at two locations in the City of Chicago: Apartment 505, 736 West Buena and Apartment 211, 1135 West Lunt.

It was also revealed that authorizations, both originals and renewals, were obtained which enabled special agents of the Federal Bureau of Investigation to install devices that could visually monitor and record all activities that took place in the two apartments, where, during the period in question, defendants or some of them, enjoyed an expectation of privacy. All of the orders were issued pursuant to the purported authority of Sections 2518(4)(c) of Title III of the Omnibus Crime and Safe Streets Act of 1968, 18 U.S.C. Sections 2510-2520.

After learning of these aural and visual interceptions, but in accordance with a previously set schedule, defendants Torres, Cortes, and Alberto Rodriguez filed a 99-page motion to dismiss the indictment, supported by appendices totaling 65 pages in which they reviewed the history of the relation between the United States and Puerto Rico during the period between 1898 and 1974. This review covered what defendants described as the struggle for independence of Puerto Rico. They argued that they are not domestic criminal accuseds to be prosecuted in this case; they are prisoners of war to whom this court should afford P.O.W. status.

But if this court did not agree, defendants contended that their case should be transferred to a competent international tribunal. Or in the alternative, they argued that this court should compel the government to produce all records and logs of FBI surveillance, investigations, and counterintelligence concerning them and groups of Puerto Ricans who had struggled for the independence of their native island. Defendants requested the court to grant them a hearing, if their motion to dismiss were not granted, "and order the suppression of all illegally obtained evidence."¹

The remaining defendant, Jose Rodriguez, proceeding on a schedule for himself, filed a motion requesting that this court hear evidence and "suppress electronic surveillance." He alleged he was relying on the ground that authorizations for interception of wire and oral communications in the two apartments were issued without the probable cause required by 18 U.S.C. §§ 2518(3)(a), (b), (d) and by the Fourth Amendment to the Constitution of the United States; that the initial applications and the renewals were not in compliance with the specific requirements of 18 U.S.C., §§ 2518(1)(c) and 4(c). Further, he alleged that the applications and their subsequent renewals were based on allegations which were false at the time they were presented to the Chief Judge and that those making the original and renewal applications knew of the falsity and acted with reckless disregard of the truth.

He further alleged that the surveillances conducted by agents of the government in the two apartments, pursuant to the authorizations, both original and renewals, violated the orders issued by the Chief Judge, and contravened constitutional prohibitions against general searches. For these reasons, he asked this court to enter an order suppressing all electronic surveillance intercepted by agents of the government in this case. Earlier, the court had ordered that in this multi-defendant prosecution, a motion filed by one defendant would inure to the benefit of all defendants unless a defendant particularly disclaimed the advantage of that motion. A date was set for hearing of both that portion of the motion by Torres, Cortes, and Alberto Rodriguez for suppression of evidence, and the motion of Jose Rodriguez to suppress electronic surveillance. This setting was with the understanding that defendants' motions would be heard first, and depending on the court's ruling or rulings, the case would proceed to trial.

Accordingly, on Monday, January 9, 1984, the cause was before the court; the motions were called for hearing. Counsel for the parties made opening statements that delineated the scope of the motions to suppress and the items of evidence which defendants were contending had to be excluded from use by the government. Their counsel stated that they were seeking to suppress not only the wire and oral communications which government agents had intercepted in the two apartments, but were also raising legal questions that challenged the right of the government to procure court orders that authorized its agents to install devices by which they could visually monitor and record all activities that took place in the apartments. Defendants' lawyers asserted that Section 2510(4) of the Omnibus Crime Act defines "intercept" as "the aural acquisition of the contents of any wire or oral communication," a term which many courts have construed to mean coming into possession through the sense of hearing as distinguished from the sense of sight, the principal characteristic of visual monitoring. Thus, with the objectives of defendants' motions to suppress delineated, the court heard the parties; and from the evidence makes the following findings.

B. The Facts

On January 18, 1983, an assistant United States attorney for this district applied to the Chief Judge of this court for an order pursuant to § 2518 of Title 18, United States Code, authorizing the Federal Bureau of Investigation of the Department of Justice to intercept wire and oral communications from a telephone (312) 528-9075 subscribed to by Luis Berrios in Apartment 505, 736 West Buena, Chicago, Illinois. The application was under oath and stated there was probable cause to believe that the apartment had been and will be used by Edwin Cortes, Alejandrina Torres, and others yet unknown in connection with the commission of certain offenses, particularly conspiracy to oppose by force the government of the United States, in violation of 18 U.S.C. § 2384.

According to the application, the facts which supported the belief of probable cause were contained in a 67-page affidavit of a special agent of the Federal Bureau of Investigation to which were appended 11 multi-paged exhibits. As authority for the application, the assistant United States attorney referred to terms defined in § 2510 of Title 18, United States Code, and requested that additionally, the Chief Judge include in the "order the authorization for special agents of the Federal Bureau of Investigation to install in Apartment 505, 736 West Buena, Chicago, Illinois, devices that will visually monitor and record the activity taking place in furtherance of the above-described purposes." It was further requested of the Chief Judge "that Special Agents of the Federal Bureau of Investigation be authorized to surreptitiously enter the apartment in question, ... and at night if necessary, ... for the purpose of installing, concealing, adjusting and ... removing oral interception and visual observation devices" utilized pursuant to the order.

The...