Scott v. United States, 75-5688

• Decision Date: 05 April 1976
• Docket Number: No. 75-5688,75-5688
• Citation: 47 L.Ed.2d 768,425 U.S. 917,96 S.Ct. 1519
• Parties: Frank R. SCOTT et al. v. UNITED STATES
• Court: U.S. Supreme Court

425 U.S. 917

96 S.Ct. 1519

47 L.Ed.2d 768

Frank R. SCOTT et al.

v UNITED STATES.

No. 75-5688.

Supreme Court of the United States

April 5, 1976

On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.

The Court today again refuses to grant certiorari to consider the proper implementation of the 'minimization' requirement of 18 U.S.C. § 2518(5) (1970), one of the core provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See, e.g., Bynum v. United States, 423 U.S. 952, 96 S.Ct. 357, 46 L.Ed.2d 277 (1975) (Brennan, J., dissenting from denial of certiorari). The 'minimization' provision, which requires that every order and extension thereof authorizing electronic surveillance shall 'contain a provision, that the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter,'

'constitutes the congressionally designed bulwark against conduct of authorized electronic surveillance in a manner that violates the constitutional guidelines announced 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). Congress has explicitly informed us that the 'minimization' and companion safeguards [e.g., § 2518(3)(a)(b)(c)(d)] were designed to assure that 'the order will link up specific person, specific offense, and specific place. Together [the provisions of Title III] are intended to meet the test of the Constitution that electronic surveillance techniques by used only under the most precise and discriminate circumstances, which fully comply with the requirement of particularity.' S.Rep. No. 1097, 90th Cong., 2d Sess., 102 (1968), U.S.Code Cong. & Admin.News 1968, p. 2112.'Bynum v. United States, supra, at 952, 96 S.Ct. 357, 46 L.Ed.2d 277.

When the Court denied certiorari in Bynum, I indicated my reasons for believing that 'we plainly fail in our judicial responsibility when we do not review these cases to give content to the congressional mandate of 'minimization," particularly since guidance for judges authorizing electronic surveillance 'is absolutely essential if the congressional mandate to confine execution of authorized surveillance within constitutional and statutory bounds is to be carried out.' Id., at 958-959, 953, 96 S.Ct. 357, 46 L.Ed.2d 277. That review is no less appropriate now. Indeed, it is even more urgent in light of the proliferation of opinions—exemplified by these cases from the Court of Appeals for the District of Columbia Circuit—sanctioning round-the-clock surveillance in which every conversation, whether innocuous or incriminating, is intercepted.

The facts of this case are relatively simple. The government sought and obtained authorization to intercept wire communications over a certain specified telephone on the ground that there was probable cause to believe that certain named individuals were using that telephone in connection with the commission of narcotics offenses, and that information concerning the offenses would be obtained through the interception of the communications over the telephone. The order authorized the intercep- tion of conversations relating to the illegal importation and transportation of narcotics and, as required by § 2518(5), specified that the interception 'shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.'

Although the monitoring agents were aware of the minimization requirement, the agent in charge testified that no attempt was made to minimize the interceptions. In fact, the agents listened to and recorded each and every one of the 384 calls completed over the subject telephone during the 30 days the surveillance was in effect, even though the agents' contemporaneous reports to the supervising judge classified the intercepted calls as only 40% narcotics related and 60% non-narcotics related. The agents also never informed the judge that they were taking no steps to minimize the amount of surveillance.

After the surveillance was terminated and petitioners and others were arrested, the District Judge conducted pretrial hearings on the question whether all evidence obtained during the surveillance and the fruits thereof, must be suppressed on the ground of noncompliance with the minimization mandate of the statute and the explicit provision of the wiretap authorization. The judge, finding that the agents 'did not even attempt 'lip service compliance' with the provision of the order and statutory mandate but rather completely disregarded it,' 331 F.Supp. at 247, ordered the complete suppression of all evidence obtained directly or indirectly through the surveillance. Id., at 248. On appeal, the Court of Appeals remanded for further consideration in light of another case in which it had adopted a test by which the statutory command of minimization was considered to be satisfied if monitoring agents made good- faith efforts to minimize and if those efforts were reasonable. 504 F.2d 194.

On remand, further hearings were held, and the District Judge again concluded that 'the monitoring agents made no attempt to comply with the minimization order of the Court but listened to and recorded all calls over the [subject] telephone. They showed no regard for the right of privacy and did nothing to avoid unnecessary intrusion.' App., at 14a. The judge again acknowledged the 'knowing and purposeful failure to comply with or even attempt to comply with the minimization requirements,' id., at 17a, and held that this 'admitted' 'conduct would be unreasonable even if every intercepted call were narcotic-related.' Id., at 18a.

On appeal, the Court of Appeals again reversed, concluding that the surveillance was reasonable because, in light of the conversations actually intercepted, it could not identify any categories of calls which could not have been reasonably intercepted even if minimization procedures had been instituted. 516 F.2d 751. The bad faith of the monitoring agents in not instituting any minimization procedures was thus deemed essentially irrelevant: the 'agents could publicly declare their intent to disobey the minimization provisions of the wiretap order, and yet it is possible that the ultimate interceptions will be found to have been reasonable.' Id., at 756.

Rehearing en banc was denied, with four judges stating why they believed reconsideration by the full court was absolutely essential. Their statement is pertinent as an indication of the necessity for granting certiorari in this case. The dissenters observed, 522 F.2d, at 1333-1334 (Robinson, J., joined by Bazelon, C. J., and Wright and Leventhal, JJ.) (emphasis supplied) (footnotes omitted):

'The decision in these cases appears to be seriously inconsistent with our earlier decision in United States v. James, [161 U.S.App.D.C. 88, 494 F.2d 1007, cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974)]. Beyond that, the extent to which judicial interpretations of a statute sanctioning telephone wiretaps may tolerate otherwise unconstitutional invasions of privacy is a question of exceptional and recurring importance. For these reasons traditional foundations for full-court consideration—I would grant rehearing en banc in these cases.

'The governing statute requires all judicially authorized wiretapping to 'be conducted in such a way as to minimize the interception of communications not otherwise subject to interception . . .' James adopted a construction of this provision which was formulated originally by the Second Circuit. Under the James standard, the duty to minimize is satisfied 'if 'on the whole the [intercepting] agents have shown a high regard for the right of privacy and have done all they reasonably could to avoid unnecessary intrusions." Thus James demands an inquiry as to the intercepting agent's subjective intent to minimize the interception of innocent calls, as well as an objective determination that the agent could reasonably have believed that calls actually intercepted were likely to be illicit.

'The instant decision acknowledges this holding in James, but concludes that although the agents' attitude 'is a relevant factor to be considered, . . . the decisive factor is the second element—the objective reasonableness of the interceptions.' The first ele- ment is relegated to a far less significant position: '[t]he subjective intent of the monitoring agents is not a sound basis for evaluating the legality of the seizure'; '[w]...