698 F.2d 448 (D.C. Cir. 1983), 82-1247, United States v. Robinson

Docket Nº:82-1247.
Citation:698 F.2d 448
Party Name:UNITED STATES of America v. John T. ROBINSON, Appellant.
Case Date:January 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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698 F.2d 448 (D.C. Cir. 1983)

UNITED STATES of America

v.

John T. ROBINSON, Appellant.

No. 82-1247.

United States Court of Appeals, District of Columbia Circuit

January 4, 1983

Argued Sept. 17, 1982.

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Appeal from the United States District Court for the District of Columbia (D.C.Criminal No. 81-00183).

William J. Garber, Washington, D.C. (appointed by this court), for appellant.

Richard H. Gordin, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell and Joseph F. McSorley, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WRIGHT, MIKVA, and EDWARDS, Circuit Judges.

Opinion for the court PER CURIAM.

Concurring statement filed by Circuit Judge MIKVA.

PER CURIAM:

Appellant John T. Robinson seeks reversal of his conviction for interstate transportation and sale of stolen property, 1 challenging the legality of the government's electronic surveillance and police investigative procedures. For the reasons detailed below, we reject each of appellant's grounds for reversal. However, we take this opportunity to remind the government once again that both Congress and the Supreme Court require strict compliance with the letter of the statutes controlling the use of electronic surveillance devices.

I. BACKGROUND

On February 19, 1981 District Judge Norma Holloway Johnson approved the installation of an electronic listening device inside the "Royal Carpet," a second-hand business in the District of Columbia. The owner, Joseph Martin, was suspected of operating as a "fence" for stolen property and was the subject of a joint investigation by the Federal Bureau of Investigation (FBI) and the D.C. Metropolitan Police Department. The application for the listening device was authorized by Assistant Attorney General Sanford M. Litvack pursuant to 18 U.S.C. Sec. 2516(1) (1976 & Supp. V 1981), and by the United States Attorney for the District of Columbia, Charles F.C. Ruff, pursuant to 23 D.C.Code Sec. 546 (1981).

On January 19, 1981 Assistant Attorney General Litvack had been specially designated to authorize such applications by Attorney General Benjamin R. Civiletti under 18 U.S.C. Sec. 2516(1) (1976 & Supp. V 1981). On January 22, 1981 William French Smith became the new Attorney General. Assistant Attorney General Litvack's special designation was revalidated by Attorney General Smith on February 27.

On March 21 FBI agents observed appellant Robinson entering the Royal Carpet, then under both visual and electronic surveillance. Agents at the listening post

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overheard a conversation between appellant and store owner Martin during which Martin purchased some jewelry from Robinson and advised him to hide the cash payment in his socks. The agents radioed to FBI Agent Christopher Kerr, then parked several blocks from the store, and warned him that Robinson was about to leave the Royal Carpet. Kerr stopped Robinson as he departed and began questioning him. Meanwhile, other agents searched the store and found the just-sold jewelry in the lining of Martin's coat. Kerr searched appellant and found $250 in his socks. To avoid disclosing the existence of the surveillance operation, Kerr did not arrest Robinson, but simply asked him to come by the FBI field office that afternoon. Robinson never kept the appointment. Police later identified the jewelry recovered from Martin's coat as the property of an Arlington family whose home had recently been burglarized.

The listening device remained in operation until 5:28 p.m. on March 21. The 56 reels of tape were not ordered sealed by Judge Johnson until March 25.

Later that week, on March 26, Kerr and other FBI agents went to a house at 600 Keefer Place, N.W. with an arrest warrant for a Howard Parker. Although the owner of the house protested that Parker was not there, the agents nevertheless entered and began a room-by-room search of the premises. In a back room Kerr found Robinson lying face-down on a bed with an embossed stamp album near his outstretched hand on the floor. Kerr recognized Robinson from their March 21 encounter and recognized the stamp album as part of the property stolen in the Arlington robbery. Kerr escorted Robinson outside. Robinson agreed to go to the FBI office but only if Kerr would handcuff him until they were out of visual range of the house so as to avoid looking like a "snitch." At the field office, after receiving his Miranda 2 rights, Robinson confessed to the Virginia burglary. Only then was Robinson formally arrested.

On May 19, 1981 a grand jury indicted Robinson for interstate transportation of stolen property, 18 U.S.C. Sec. 2314 (1976), and for sale of stolen goods, 18 U.S.C. Sec. 2315 (1976). Appellant Robinson subsequently made two motions to suppress evidence before Judge John H. Pratt. In the first motion, submitted on briefs alone, appellant argued to suppress all evidence obtained as a result of the listening device because several of the statutory procedural requirements had not been met by the law enforcement officials. In the second motion appellant argued at a hearing that because the arrest at 600 Keefer Place was illegal and the subsequent confession involuntary, his incriminating statement should be suppressed. Judge Pratt denied both motions.

On January 6, 1982 a stipulated, non-jury trial was held. Robinson was found guilty and was sentenced to three years on each count, the terms to be served concurrently. This appeal was noted on March 8, 1982.

II. ANALYSIS

Appellant presents four challenges to his conviction: (1) that the government failed to follow the statutorily-required electronic surveillance procedures; (2) that the March 26 arrest violated his Fourth Amendment rights; (3) that his confession was involuntary; and (4) that the government failed to prove an essential element of interstate transportation of stolen goods. We address these arguments in order below.

  1. Electronic Surveillance Procedures

1. Standards for suppression

Appellant's contention is that the government failed to follow several statutory requirements for obtaining and using the electronic listening device. He argues that these failures to follow proper procedures necessitate suppression of all electronically obtained evidence since the communications were "unlawfully intercepted" within the meaning of both 18 U.S.C. Sec. 2518(10)(a)(i)

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(1976 & Supp. V 1981) 3 and 23 D.C.Code Sec. 551(b)(1) (1981). 4 To evaluate these arguments, we must first set forth the standards governing suppression. 5

The Supreme Court has made clear that not "every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful.' " United States v. Chavez, 416 U.S. 562, 574-575, 94 S.Ct. 1849, 1855-1856, 40 L.Ed.2d 380 (1974). The suppression remedy would be warranted only when the government "fail[s] to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Donovan, 429 U.S. 413, 433-434, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974)).

This court has recently addressed itself to these Supreme Court opinions in United States v. Johnson, 696 F.2d 115 (D.C.Cir.1982). We held that in evaluating the need for suppression of electronically obtained evidence, we shall be guided by the principle implicit in the above opinions--"that violations of even these central [statutory] requirements do not mandate suppression if the Government demonstrates to the court's satisfaction that the statutory purpose has been achieved despite the violation." 696 F.2d at 121 (footnote omitted). We will therefore focus on these considerations in evaluating appellant's claims that the conversations in the Royal Carpet were "unlawfully intercepted" and that all evidence derived therefrom must be suppressed.

2. Authorization of application

Title III of the Omnibus Crime Control and Safe...

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