751 F.2d 875 (7th Cir. 1984), 84-1077, United States v. Torres

Docket Nº:84-1077.
Citation:751 F.2d 875
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Alejandrina TORRES, et al., Defendants-Appellees.
Case Date:December 19, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 875

751 F.2d 875 (7th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellant,

v.

Alejandrina TORRES, et al., Defendants-Appellees.

No. 84-1077.

United States Court of Appeals, Seventh Circuit

December 19, 1984

Argued June 8, 1984.

Certiorari Denied March 25, 1985.

See 105 S.Ct. 183.

Page 876

Joseph H. Hartzler, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellant.

David C. Thomas, Chicago Kent College of Law, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

This appeal by the United States raises two novel and important questions: whether the federal government may ever secretly televise the interior of a private building as part of a criminal investigation and use the videotapes in a criminal trial, and if so whether the warrants under which television surveillance was conducted in this case complied with constitutional requirements. A federal grand jury indicted the four defendants, who are members of the FALN (Fuerzas Armadas de Liberacion Nacional Puertorriquena), on charges of seditious conspiracy (18 U.S.C. Sec. 2384) and related weapons and explosives violations. On the eve of trial, the district judge ordered the suppression of videotapes that the FBI had made as part of its surveillance of two FALN safe houses. 583 F.Supp. 86, 99-105 (N.D.Ill.1984). The government appeals this order under 18 U.S.C. Sec. 3731. The videotapes had no sound track; but at the same time that the FBI was televising the interior of the safe houses it was recording the sounds on different equipment. The judge refused to order suppression of the sound tapes, and they are not in issue in this appeal.

The FALN is a secret organization of Puerto Rican separatists that has been trying to win independence for Puerto Rico by tactics that include bombing buildings in New York, Chicago, and Washington. The bombs are assembled and stored, and members of the organization meet, in safe houses rented under false names. The bombings have killed several people, injured many others, and caused millions of dollars

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of property damage. See 583 F.Supp. at 91; In re Special February 1975 Grand Jury, 565 F.2d 407, 409-10 (7th Cir.1977); United States v. Rosado, 728 F.2d 89, 91-92 (2d Cir.1984); In re Archuleta, 561 F.2d 1059, 1060 (2d Cir.1977); In re Cueto, 443 F.Supp. 857, 858 (S.D.N.Y.1978); Breasted, 3-Year Inquiry Threads Together Evidence on F.A.L.N. Terrorism, N.Y. Times, April 17, 1977, at p. 1; Donner, The Age of Surveillance 459 (1980) (the FALN "is notorious for its unique indifference to personal injury and possible death randomly inflicted by bombs planted in public places"); Motley, US Strategy to Counter Domestic Political Terrorism 18, 76 (1983).

The background to the present case is the arrest in 1980 in a Chicago suburb of several members of the FALN, one of whom agreed to help the FBI's investigation of the organization. He identified as members two of the people later charged in this case. FBI agents followed one, who unwittingly led the agents to an apartment in Chicago that was being used as an FALN safe house. The U.S. Attorney obtained from Chief Judge McGarr of the Northern District of Illinois an order authorizing the FBI to make surreptitious entries into the apartment to install electronic "bugs" and television cameras in every room. The FBI wanted to see as well as hear because it had reason to believe that the people using the safe houses, concerned they might be bugged, would play the radio loudly when they were speaking to each other and also would speak in code, and that the actual assembly of bombs would be carried on in silence. The television surveillance of the first apartment paid off: the FBI televised two of the defendants assembling bombs. On the basis of these observations the FBI obtained a search warrant for the apartment and found dynamite, blasting caps, guns, and maps showing the location of prisons. Tailing the same two defendants led to the second safe house involved in this appeal. Again a warrant was obtained to conduct electronic, including television, surveillance; and it was by televising meetings in this safe house that the other two defendants in this case were identified.

The trial judge held that there was no statutory or other basis for Chief Judge McGarr's order authorizing television surveillance of the safe houses and that therefore the fruits of the surveillance, including the videotapes, would be inadmissible in the defendants' forthcoming trial. 583 F.Supp. at 105. The defendants and amici curiae advance the following additional grounds for this result: television surveillance in criminal investigations (other than of foreign agents) is forbidden by federal statute; it is in any event so intrusive--so reminiscent of the "telescreens" by which "Big Brother" in George Orwell's 1984 maintained visual surveillance of the entire population of "Oceania," the miserable country depicted in that anti-utopian novel--that it can in no circumstances be authorized (least of all, one imagines, in the year 1984) without violating both the Fourth Amendment and the Fifth Amendment's due process clause; and even if all this is wrong, still the particular orders ("warrants," as we shall call them) in this case did not satisfy the requirements of the Fourth Amendment's warrant clause.

The trial judge appears, however, to have overlooked United States v. New York Tel. Co., 434 U.S. 159, 168-70, 98 S.Ct. 364, 370-71, 54 L.Ed.2d 376 (1977), where the Supreme Court held that Rule 41 of the Federal Rules of Criminal Procedure, which authorizes the issuance of search warrants, embraces orders to install "pen registers" (devices that record the phone numbers that a telephone subscriber is dialing). See also Michigan Bell Tel. Co. v. United States, 565 F.2d 385, 388-89 (6th Cir.1977); United States v. Hall, 583 F.Supp. 717, 718-19 (E.D.Va.1984). Although the language of Rule 41 is that of conventional searches (see especially subsection (b)), the Court in the New York Telephone case read the rule flexibly and concluded that it covers "electronic intrusions" as well--including bugging. 434 U.S. at 169, 98 S.Ct. at 371 (dictum). We cannot think of any basis on which the rule might be thought sufficiently flexible to

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authorize a pen register, bug, or wiretap, but not a camera. It is true that secretly televising people (or taking still or moving pictures of them) while they are in what they think is a private place is an even greater intrusion on privacy than secretly recording their conversations. But the fact that electronic eavesdropping is more intrusive than conventional searching did not prevent the Supreme Court in the New York Telephone case from reading Rule 41--very broadly in view of its language--to embrace electronic eavesdropping. The next step, to television surveillance, is smaller than the one the Court took.

There is another basis, besides Rule 41, for the issuance of warrants for television surveillance. Like the power to prescribe or regulate procedure, to punish for contempts of court, and to issue writs in aid of the court's jurisdiction, the power to issue a search warrant was historically, and is still today, an inherent (by which we mean simply a nonstatutory, or common law) power of a court of general jurisdiction. Indeed, it is an aspect of the court's power to regulate procedure. A search warrant is often used to obtain evidence for use in a criminal proceeding, and is thus a form of (or at least an analogue to) pretrial discovery. Although Congress can limit the procedural authority of the federal courts--if nothing else, Congress's power to create lower federal courts (Art. I, Sec. 8, cl. 9) so implies--until it does so with respect to a particular subject the courts retain their traditional powers. Rule 57(b) of the Federal Rules of Criminal Procedure virtually so states. And much of federal criminal procedure, especially in the early days of the federal courts, was judge-made. Orfield, Early Federal Criminal Procedure, 7 Wayne L.Rev. 503 (1961), gives a number of examples, though none involve search warrants. See id. at 529.

In England the inherent judicial power to issue warrants (warrants to seize persons and things and therefore implicitly to search for them) goes back very far--perhaps to the twelfth century. See Baker, An Introduction to English Legal History 15 (2d ed. 1979); Crown Pleas of the Wiltshire Eyre, 1249, at 75, 92, 98, 100 (Meekings ed. 1961). By the seventeenth century the power was firmly lodged in the justices of the peace. See Dalton, The Countrey Justice 1619, at 300-06 (1972 reprint ed. [1622]; Lasson, The History and Development of the Fourth Amendment to the United States Constitution 36 n. 86 (1937). Hale's History of the Pleas of the Crown (1736) makes clear that the justices of the peace could issue search warrants, provided they were not general warrants. See passages quoted in Scarboro & White, Constitutional Criminal Procedure 21 (1977). As the justices of the peace were not even lawyers, it seems likely that the judges of the royal courts (from which many features of the federal courts were borrowed) had the same power, if little or no occasion to exercise it. A modern American parallel is Rule 41(a) of the Federal Rules of Criminal Procedure, which in terms authorizes only federal magistrates and state-court judges to issue search warrants (see 3 Wright, Federal Practice and Procedure: Criminal 2d, pp. 571-73 nn. 1-7 (1982)) but has been uniformly assumed (for example in the New York Telephone case) to empower federal district judges as well to issue search warrants.

Although Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765), has...

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