State v. Frink

• Decision Date: 13 April 1973
• Docket Number: No. 43300,43300
• Citation: 206 N.W.2d 664,296 Minn. 57
• Parties: STATE of Minnesota, Respondent, v. Brian J. FRINK, Petitioner, Robert C. Mix, Petitioner.
• Court: Minnesota Supreme Court

Page 664

206 N.W.2d 664

296 Minn. 57

STATE of Minnesota, Respondent, v. Brian J. FRINK, Petitioner, Robert C. Mix, Petitioner.

No. 43300.

Supreme Court of Minnesota.

April 13, 1973.

Syllabus by the Court

Minn.St. 388.10, which permits a county attorney to appoint an assistant county attorney to aid in the performance of his duties, does not authorize the county attorney to delegate to his assistant the duty expressly conferred on the county attorney by Minn.St. 626A.05, subd. 1, to apply for a warrant permitting law-enforcement officers to intercept wire or oral communications under the Minnesota Privacy of Communications Act.

Accordingly, evidence obtained through a wire interception which was authorized by the court pursuant to an application made only by an assistant county attorney is inadmissible.

William D. Sommerness, Asst. Public Defender, Duluth, for Brian J. Frink.

McNulty & Stege and William L. Stege, Duluth, for Robert C. Mix.

Keith M. Brownell, County Atty., Robert Lucas, Asst. County Atty., Duluth, for respondent.

William B. Randall, Ramsey County Atty., and Steven C. DeCoster, Asst. Ramsey County Atty., for Minnesota County Attorneys Association, amicus curiae.

Heard and considered en banc.

OTIS, Justice.

Defendants were charged on October 30, 1970, with possession of narcotic drugs consisting of heroin, hashish, and marijuana, in violation of Minn.St.1969, §§ 618.01 and 618.02. The offenses were felonies under Minn.St.1969, § 618.21. ¹ In June 1971, prior to arraignment in the district court, the county attorney and counsel for defendants presented to this court a petition for a writ of prohibition which raised the issue of whether evidence obtained by intercepting messages transmitted over the telephone of defendant Robert Mix would be admissible in the pending trial. By stipulation of the parties, we issued the writ enjoining the district court from proceeding until further order of the court. The matter was thereafter heard en banc. Because the county attorney did not himself apply to the court for the warrant authorizing the interception of the communications on which the charge is based, as required by Minn.St. 626A.05, we have concluded that the evidence thus obtained is inadmissible under § 626A.11.

On October 16, 1970, Jerome G. Arnold, as assistant county attorney of St. Louis County, applied to the district court for a search warrant authorizing members of the Duluth Police Department to intercept telephone communications at Apartment 6, 307 East Third Street, in the city of Duluth. The warrant was issued. The telephone was listed in the name of defendant Mix. On October 26, Mr. Arnold obtained from the district court a second warrant extending the interception for an additional 10 days. As a result of conversations thus monitored, the police obtained a warrant which authorized them to search an automobile occupied by defendants Mix and Brian Frink at 57th Avenue West and Cody Street in the city of Duluth, on October 30. In conducting that search, the police found the narcotics which led to this prosecution.

Motions to suppress the evidence thus seized were based in part on a failure to comply with § 626A.05 of the Privacy of Communications Act, which requires that applications for interception be initiated either by the attorney general or by a county attorney. In denying the motions, the trial court held:

'* * * It is further the ruling of this Court that Jerome G. Arnold, an Assistant County Attorney, was a proper person to make application for an order to intercept communications within the meaning of M.S.A. Chapter 626A and Section 388.10.' ²

The Minnesota Privacy of Communications Act which became effective July 1, 1969, was adopted in response to Title III of the Omnibus Crime Control and Safe Streets Act enacted by Congress in 1968 and codified as 18 U.S.C.A., §§ 2510 to 2520. The Federal provisions in turn were prompted by efforts to formulate statutory rules which would implement the mandates of the Fourth Amendment suggested by the United States Supreme Court 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).

In any consideration of the application of these statutes, it is essential to have in mind that both the state and Federal acts are basically criminal laws to punish the unauthorized interception of wire or oral communications, authorizing imprisonment up to 5 years and fines up to $10,000 for violations. Both acts are designed to enforce the rights conferred by U.S.Const. Amend. IV. That amendment provides:

'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.'

The right of privacy and freedom from intrusion which the Fourth Amendment promises have not always been enjoyed by English-speaking people. It was not until 1765 that the Lord Chief Justice of England, Lord Camden, struck down as unlawful general warrants issued by Lord Halifax, one of the principal secretaries of state, in Entick v. Carrington, 19 Howell, St.Tr. 1029. Lord Camden denounced such warrants as intrusions which are 'subversive of all the comforts of society.' Id. 1066. ³ The United States Supreme Court in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (1886), observed that the Entick case laid down principles which affected 'the very essence of constitutional liberty and security. * * * they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life.' In holding a Federal customs statute unconstitutional, the court concluded by saying (116 U.S. 635, 6 S.Ct. 535, 29 L.Ed. 752):

'* * * It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. * * * It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'

Although the United States Supreme Court upheld a telephone wiretap in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), that decision prompted much-quoted dissents on the part of Mr. Justice Holmes and Mr. Justice Brandeis whose views ultimately prevailed when the court overruled Olmstead in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In condemning wiretapping as a violation of the Fourth Amendment, Mr. Justice Holmes said (277 U.S. 470, 48 S.Ct. 575, 72 L.Ed. 953):

'* * * We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

'For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed.'

After referring to the Entick case and the writs of assistance which played a part in provoking the American Revolution, ⁴ Mr. Justice Brandeis concluded with this observation (277 U.S. 475, 48 S.Ct. 571, 72 L.Ed. 955):

'* * * The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping.'

In a series of recent cases the rules which were subsequently codified into the Federal wiretap statutes, 18 U.S.C.A., c. 119, were enunciated by the United States Supreme Court. A New York eavesdropping statute was held unconstitutional in Berger v. New York, 388 U.S. 41, 62, 87 S.Ct. 1873, 1885, 18 L.Ed.2d 1040, 1054, where the court said:

'* * * (W)e cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we require today but a fundamental rule that has long been recognized as basic to the privacy of every home in America. * * * (I)t is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.'

In Katz v. United States, Supra, evidence was held inadmissible because it was obtained by an unauthorized tap of a telephone booth. There, the court said that whether a person is in his home, office, hotel room, or a telephone booth, 'he is entitled to know that he will remain free from unreasonable searches and seizures.' 389 U.S. 359, 88 S.Ct. 515, 19 L.Ed.2d 586.

Two other cases deserve comment. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); and Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). In the first case, the court held that evidence secured by the President through electronic surveillance without a court order had been obtained in violation of the Fourth Amendment and was inadmissible. The court observed that the use of electronic surveillance is not a welcome development even when...