Olander by Ireland, Application of

• Decision Date: 03 November 1973
• Docket Number: No. 47171,47171
• Citation: 213 Kan. 282,515 P.2d 1211
• Parties: Application of Gene M. OLANDER, County Attorney of Shawnee County, Kansas, By Lawrence P. IRELAND, Assistant County Attorney of Shawnee County, Kansas, for an Order Authorizing Eavesdropping Pursuant to K.S.A.1972 Supp. 22-2513. STATE of Kansas, Appellant, v. Kelly STEIN and Fred Gallion, Respondents.
• Court: Kansas Supreme Court

Page 1211

515 P.2d 1211

213 Kan. 282

Application of Gene M. OLANDER, County Attorney of Shawnee County, Kansas, By Lawrence P. IRELAND, Assistant County Attorney of Shawnee County, Kansas, for an Order Authorizing Eavesdropping Pursuant to K.S.A.1972 Supp. 22-2513 STATE of Kansas, Appellant, v. Kelly STEIN and Fred Gallion, Respondents.

No. 47171.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. The maxim 'expressio unius est exclusio alterius' is a rule which can be used to assist in arriving at the true legislative intent when it is not otherwise manifest, although it should not be employed to override or defeat a clearly contrary legislative intent.

2. Electronic surveillance is a sensitive area of the law, and legislative bodies have strictly limited the right to apply for eavesdropping orders to small select groups of public officials.

3. Under the provisions of K.S.A.1972 Supp. 22-2513, an assistant county attorney is not within the class of persons designated by the legislature to apply for an order permitting eavesdropping.

4. The record is examined in an interlocutory appeal from an order suppressing evidence obtained pursuant to an order permitting eavesdropping and for reasons appearing in the opinion it is held the trial court did not err in suppressing the evidence.

Gene M. Olander, Dist. Atty., argued the cause Vern Miller Atty. Gen. and Lawrence P. Ireland Asst. Dist. Atty. were with him on the brief for appellant.

John C. Humpage, Topeka, argued the cause, and Robert L. Roberts, Topeka, was with him on the brief for respondent.

FONTRON Justice:

The defendant, E. K. Stein, to whom we shall refer either by name or as petitioner, is presently charged with commercial gambling in violation of K.S.A.1972 Supp. 21-4304. The charges were filed January 1, 1973, but before a preliminary examination could be held Mr. Stein filed a motion in the Shawnee District Court to suppress all evidence derived through an order authorizing eavesdropping issued by the Honorable Michael A. Barbara pursuant to K.S.A.1972 Supp. 22-2513.

After hearing the motion, Judge Barbara overruled it on March 6, 1973. However, on a motion for rehearing the judge reversed his position, and on April 19th he entered judgment suppressing the evidence obtained through the eavesdrop order. The state appealed from Judge Barbara's order under the authority of K.S.A.1972 Supp. 22-3603.

Background facts are as follows: On December 21, 1972, Lawrence P. Ireland, then assistant county attorney of Shawnee County, applied to Judge Barbara for an order authorizing eavesdropping. The application purported to be made by Gene Olander, the county attorney, by Mr. Ireland, but was signed, verified and presented by Ireland.

The record reflects that when Stein's motion to suppress was heard on February 28, 1973 the state offered evidence by Ireland that he filed the application at the express order and with the consent of Olander who was absent from the county at the time, being then engaged in prosecuting a criminal action in Johnson County. Stein apparently did not dispute this evidence and the trial court found the application was made in the county attorney's name but because of his absence from the county it was signed by an assistant who had express authority to file the same.

K.S.A.1972 Supp. 22-2513 relates to and governs the issuance of orders authorizing eavesdropping. The statute reads in part:

'An ex parte order authorizing eavesdropping, as defined in K.S.A.1969 Supp. 21-4001, may be issued by any justice of the supreme court or by any district judge as herein provided.

'(1) The attorney general, an assistant attorney general or a county attorney may make an application to any of the above specified magistrates for an order authorized (sic) eavesdropping when the information to be obtained may provide evidence of the commission of any of the following offenses:

* * *

* * *

'(g) Commercial gambling;

* * *

* * *

'(2) The magistrate to whom application for an order authorizing eavesdropping is addressed shall examine, under oath, the applicant and any other witness he may produce and shall satisfy himself that there are reasonable grounds and probable cause therefor before granting such application and that there are no other means available for obtaining the evidence and that the evidence to be obtained is essential to the solution or prevention of the crime or may assist in the prosecution thereof. . . .'

In sustaining petitioner's motion to suppress the evidence obtained through the eavesdrop order, the trial court declined to rule on whether the county attorney might delegate his authority to apply for the order to an assistant county attorney. Instead, the court based its ruling on the premise that the record of the proceedings had when the order was issued must have contained a showing that Mr. Olander, the statutory designee, had authorized the assistant county attorney to make the application. Because the record of the December 21st hearing, at which the eavesdrop order was issued, was completely void of any showing that Olander was not available, or that he had approved, consented to, or authorized Ireland to apply for the order, the trial court felt it 'must find there was no delegation, no valid showing at this time.' In coming to this conclusion the court rejected the state's contention that a showing of authority might be supplied by evidence adduced at a hearing held after the order was issued.

On appeal, the state stoutly urges that Mr. Olander's delegation of authority to Mr. Ireland to apply for the eavesdrop order need not appear in the record of the proceedings at which the order was obtained, but that evidence of that authority may be presented at a later hearing-as was done in this case. Mr. Stein, quite understandably, comes up with a contrary view. While we have been cited to considerable federal authority in this area, we are not required to determine the question here, for our decision must be premised on our own statute.

We have previously quoted pertinent portions of our statute. It recites that the attorney general, an assistant attorney general or a county attorney may apply for an order authorizing eavesdropping. Conspicuously missing from the list of statutory designees is an assistant county attorney. The petitioner correctly points out that an assistant attorney general is specifically included as one of the officers authorized to apply for an order, while there is no provision in the statute authorizing an assistant county attorney to do so. The necessary implication, so the argument goes, is that the legislature, by including an assistant attorney general among the authorized designees but omitting therefrom an assistant county attorney, expressed a clear intent to exclude the latter from the class of officers authorized to apply for an eavesdropping order.

One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i. e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. (Commerce Trust Co. v. Paulen, 126 Kan. 777, 271 P. 388; Rooney v. Horn, 174 Kan. 11, 254 P.2d 322; 50 Am.Jur., Statutes, §§ 244-246, pp. 238-241.)

Mr. Olander, counsel for the state, frankly concedes that the decision to apply for the order in this case was within his competence, alone, but he argues that once having made the decision he could then delegate or authorize his assistant to make the application. We are of the opinion, however, that the statute is intended to limit strictly the class of persons who may apply for an order permitting electronic surveillance, and that an assistant county attorney does not come within the class designated by the Kansas Legislature.

No area of the law is more sensitive than that of electronic surveillance, since such activity intrudes into the very heart of personal privacy. Thus it is that legislative assemblies, including the Congress, have carefully restricted the right to apply for the use of electronic bugging devices to a very select coterie of public officers. Federal magistrates are fond of citing language excerpted from Senate Report No. 1097, 1968 U.S.Code Cong. & Admin. News, p. 2185, in explaining the legislative thinking which has undergirded the surveillance provisions in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C.A. § 2510 et seq.) As to § 2516(1), which pertains to the issuance of federal orders on application of highly placed government officials, the Senate Report reads:

'. . . This provision centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen.'

This passage of prose, although primarily found in federal cases arising under the federal surveillance statute, (United States v. Robinson, 5 Cir., 468 F.2d 189; United States v. Narducci, D.C., 341 F.Supp. 1107), has been quoted in state decisions, as well. See, for example, State v. Frink, Minn., 206 N.W.2d 664; State v. Cocuzza, 123 N.J.Super. 14, 301 A.2d 204, even though neither of these state decisions is factually in point.

As we have heretofore indicated, many of the decisions dealing with applications for permission to conduct electronic surveillance will be found in the federal domain. The governing statute is 18 U.S.C.A. § 2516, to which reference has previously been...