Scott v. United States

• Decision Date: 15 May 1978
• Docket Number: No. 76-6767,76-6767
• Parties: Frank R. SCOTT, etc. and Bernis L. Thurmon, etc., Petitioners, v. UNITED STATES
• Court: U.S. Supreme Court

436 U.S. 128

98 S.Ct. 1717

56 L.Ed.2d 168

Frank R. SCOTT, etc. and Bernis L. Thurmon, etc., Petitioners,

v UNITED STATES.

No. 76-6767.

Argued March 1, 1978.

Decided May 15, 1978.

Rehearing Denied June 26, 1978.

See 438 U.S. 908, 98 S.Ct. 3127.

Syllabus

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 requires that wiretapping or electronic surveillance "be conducted in such a way as to minimize" the interception of communications not otherwise subject to interception under that Title. 18 U.S.C. § 2518(5) (1976 ed.). Pursuant to a court wiretap authorization order requiring such minimization, Government agents intercepted for a one-month period virtually all conversations over a particular telephone suspected of being used in furtherance of a conspiracy to import and distribute narcotics. Forty percent of the calls were clearly narcotics related, and the remaining calls were for the most part very short, such as wrong-number calls, and calls to persons unavailable to come to the phone, or were ambiguous in nature, and in a few instances were between the person to whom the telephone was registered and her mother. After the interceptions were terminated, petitioners, among others, were indicted for various narcotics offenses. The District Court, on petitioners' pretrial motion, ordered suppression of all the intercepted conversations and derivative evidence, on the ground that the agents had failed to comply with the wiretap order's minimization requirement, primarily because only 40% of the conversations were shown to be narcotics related. The Court of Appeals reversed and remanded, stating that the District Court should not have based its determination upon a general comparison of the number of narcotics-related calls with the total number of calls intercepted, but rather should have engaged in a particularized assessment of the reasonableness of the agents' attempts to minimize in light of the purpose of the wiretap and information available to the agents at the time of interception. On remand, the District Court again ordered suppression, relying largely on the fact that the agents were aware of the minimization requirement "but made no attempt to comply therewith." The Court of Appeals again reversed, holding that the District Court had yet to apply the correct standard, that the decision on the suppression motion ultimately had to be based on the reasonableness of the actual interceptions and not on whether the agents subjectively intended to minimize their interceptions, and that suppression in this case was not appropriate. Petitioners were eventually convicted, and the Court of Appeals affirmed. Held:

1. The proper approach for evaluating compliance with the minimization requirement, like evaluation of all alleged violations of the Fourth Amendment, is objectively to assess the agent's or officer's actions in light of the facts and circumstances confronting him at the time without regard to his underlying intent or motive. Pp. 135-138.

2. Even if the agents fail to make good-faith efforts at minimization, that is not itself a violation of the statute requiring suppression, since the use of the word "conducted" in § 2518(5) makes it clear that the focus was to be on the agents' actions, not their motives, and since the legislative history shows that the statute was not intended to extend the scope of suppression beyond search-and-seizure law under the Fourth Amendment. Pp. 138-139.

3. The Court of Appeals did not err in rejecting petitioners' minimization claim, but properly analyzed the reasonableness of the wiretap. Pp. 139-143.

(a) Blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer. While such percentages may provide assistance, there are cases, like this one, where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable. P. 140.

(b) It is also important to consider the circumstances of the wiretap, such as whether more extensive surveillance may be justified because of a suspected widespread conspiracy, or the type of use to which the wiretapped telephone is normally put. P. 140.

(c) Other factors, such as the exact point during the authorized period at which the interception was made, may be significant in a particular case. P. 141.

(d) As to most of the calls here that were not narcotics related, such calls did not give the agents an opportunity to develop a category of innocent calls that should not have been intercepted, and hence their interception cannot be viewed as a violation of the minimization requirement. As to the calls between the telephone registrant and her mother, it cannot be said that even though they turned out not to be relevant to the investigation, the Court of Appeals was incorrect in concluding that the agents did not act unreasonably at the time they made these interceptions. Pp. 142-143.

179 U.S.App.D.C. 281, 551 F.2d 467, affirmed.

John A. Shorter, Jr., Washington, D. C., for petitioners.

Richard A. Allen, Cambridge, Mass., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which deals with wiretapping and other forms of electronic surveillance. 18 U.S.C. §§ 2510-2520 (1976 ed.). In this Act Congress, after this Court's decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), set out to provide law enforcement officials with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy. See generally S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), U.S.Code Cong. & Admin.News 1968, p. 2112. We have had occasion in the past, the most recent being just last Term, to consider exactly how the statute effectuates this balance.¹ This case requires us to construe the statutory requirement that wiretapping or electronic surveillance "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." 18 U.S.C. § 2518(5) (1976 ed.).

Pursuant to judicial authorization which required such minimization, Government agents intercepted all the phone conversations over a particular phone for a period of one month. The District Court for the District of Columbia suppressed all intercepted conversations and evidence derived therefrom in essence because the "admitted knowing and purposeful failure by the monitoring agents to comply with the minimization order was unreasonable . . . even if every intercepted call were narcotic-related." App. 39. The Court of Appeals for the District of Columbia Circuit reversed, concluding that an assessment of the reasonableness of the efforts at minimization first requires an evaluation of the reasonableness of the actual interceptions in light of the purpose of the wiretap and the totality of the circumstances before any inquiry is made into the subjective intent of the agents conducting the surveillance. 170 U.S.App.D.C. 158, 516 F.2d 751 (1975). We granted certiorari to consider this important question, 434 U.S. 888, 98 S.Ct. 261, 54 L.Ed.2d 173 (1977), and, finding ourselves in asic agreement with the Court of Appeals, affirm.

I

In January 1970, Government officials applied, pursuant to Title III, for authorization to wiretap a telephone registered to Geneva Jenkins.² The supporting affidavits alleged that there was probable cause to believe nine individuals, all named, were participating in a conspiracy to import and distribute narcotics in the Washington, D. C., area and that Geneva Jenkins' telephone had been used in furtherance of the conspiracy, particularly by petitioner Thurmon, who was then living with Jenkins. The District Court granted the application on January 24, 1970, authorizing agents to "[i]ntercept the wire communications of Alphonso H. Lee, Bernis Lee Thurmon, and other persons as may make use of the facilities hereinbefore described." App. 80. The order also required the agents to conduct the wiretap in "such a way as to mini- mize the interception of communications that are [not] otherwise subject to interception" under the Act ³ and to report to the court every five days "the progress of the interception and the nature of the communication intercepted." Ibid. Interception began that same day and continued, pursuant to a judicially authorized extension, until February 24, 1970, with the agents making the periodic reports to the judge as required. Upon cessation of the interceptions, search and arrest warrants were executed which led to the arrest of 22 persons and the indictment of 14.

Before trial the defendants, including petitioners Scott and Thurmon, moved to suppress all the intercepted conversations on a variety of grounds. After comprehensive discovery and an extensive series of hearings, the District Court held that the agents had failed to comply with the minimization requirement contained in the wiretap order and ordered suppression of the intercepted conversations and all derivative evidence. The court relied in large part on the fact that virtually all the conversations were intercepted while only 40% of them were shown to be narcotics related. This, the court reasoned, "strongly indicate[d] the indiscriminate use of wire surveillance that was proscribed by Katz ⁴ and Berger." ⁵ 331 F.Supp. 233, 247 (D.C.1971).

The Court of Appeals for the District of Columbia Circuit reversed and remanded, stating that the District Court should not have based its determination upon a general comparison of the number of narcotics-related calls with the total number of calls intercepted, but rather should have engaged in a particularized assessment of the reasonableness of the agents' attempts to minimize in light of the purpose of the...