State v. Monsrud, C1-82-481
| Decision Date | 19 August 1983 |
| Docket Number | No. C1-82-481,C6-82-850.,C1-82-481 |
| Citation | 337 NW 2d 652 |
| Parties | STATE of Minnesota, Respondent, v. Arlyn MONSRUD, Appellant. STATE of Minnesota, Respondent, v. Alroy MONSRUD, Appellant. |
| Court | Minnesota Supreme Court |
Friedberg & Peterson, Minneapolis, for appellants.
Hubert H. Humphrey, III, St. Paul, Martin Berg, County Atty., Roseau, for respondent.
Considered and decided by the court en banc without oral argument.
Appellants Arlyn and Alroy Monsrud were convicted in separate trials in the Roseau County District Court of felony marijuana offenses occurring on August 14 and 19, 1981. These convictions resulted from an investigation by the Minnesota Bureau of Criminal Apprehension (BCA), in cooperation with local law enforcement officials, into marijuana trafficking in Roseau and surrounding counties in northwestern Minnesota. The investigation was directed primarily at Arlyn Monsrud, but his brother, Alroy Monsrud, was also arrested and convicted. The investigation included the use of a court-ordered wiretap of the telephone of Albert Monsrud, Jr., appellants' father, with whom Arlyn Monsrud lived. All issues in these appeals relate to this wiretap. We affirm.
Government officials had for some time been investigating marijuana dealing in Roseau County. On August 10, 1981, the Roseau County Attorney, having been sworn before a notary public, signed a written application for a wiretap of the phone of Albert Monsrud, Jr. BCA agent Gregory Hopps, the officer in charge of the investigation, took the application and its supporting affidavits to a Roseau County District Court judge who signed an order authorizing a wiretap of the phone for a ten-day period. Agents intercepted a total of 370 calls from August 12 to August 19, 1981, the day appellants were arrested. Many of these calls were very brief, or were wrong numbers or misdials.
The parties have stipulated pursuant to Rule 29.02, subd. 10, Minn.R.Crim.P., as to the essential convictive evidence presented to the jury. It is sufficient to note that the August 14, 1981, offenses arose out of a sale of five pounds of marijuana to Agent Hopps by associates of appellants. The August 19, 1981, offenses arose out of an uncompleted sale of 20 pounds of marijuana to Agent Hopps. Transcripts of conversations intercepted pursuant to the wiretap were introduced at both trials.
Prior to trial appellants moved for suppression of the wiretap evidence on several grounds. The trial court denied the motions, appellants were convicted, and this appeal was taken challenging the introduction at trial of the wiretap evidence. On appeal appellants contend that the wiretap evidence should have been suppressed because (1) the county attorney did not personally appear before the judge issuing the wiretap order, in violation of 18 U.S.C. 2516(2), Minn.Stat. § 626A.05, subd. 1 (1982), and Minn.Stat. § 626A.06, subd. 1 (1982); (2) the wiretap application did not establish that other investigative techniques were inadequate to expose the crimes, contrary to Minn.Stat. § 626A.06, subds. 1(c) and 3(c) (1982); (3) the wiretap order did not specify the offenses for which the wiretap was authorized under Minn.Stat. § 626A.05, subd. 2 (1980); (4) the application did not identify Alroy Monsrud as a person whose conversations were to be intercepted, in violation of 18 U.S.C. 2518(1)(b)(iv) and Minn.Stat. § 626.06, subd. 1(b)(iv) (1982); and (5) the agents executing the wiretap warrant failed to comply with the minimization requirement of 18 U.S.C. 2518(5) and Minn.Stat. § 626.06, subd. 4(h) (1982).
In 1968 Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211 (1968), codified at 18 U.S.C. 2510-2520 (1976 ed.), which deals with wiretapping and other forms of electronic surveillance. By this Act Congress intended to provide law enforcement officers with some of the tools thought necessary to combat crime without unnecessarily infringing on the right of individual privacy. Scott v. United States, 436 U.S. 128, 130, 98 S.Ct. 1717, 1719, 56 L.Ed.2d 168 (1978). All state wiretaps are foreclosed under the federal statute unless authorized by a similar state statute which may be more restrictive, but not less so, than the federal act. State v. Frink, 296 Minn. 57, 65, 206 N.W.2d 664, 669 (1973).
The Minnesota Privacy of Communication Act, Minn.Stat. Ch. 626A (1982), was enacted in 1969 in response to the federal wiretap statute. Ambiguities in our statute will be strictly construed against the state. Wolk v. DeCowski, 310 N.W.2d 131, 132 (Minn.1981); State v. Frink, 296 Minn. 57, 74, 206 N.W.2d 664, 674 (1973).
1. Appellants contend the wiretap order was improperly issued because the Roseau County Attorney did not appear in person before the district court judge who issued the order. This contention is based upon a construction of Minn.Stat. § 626A.05, subd. 1, § 626A.06, subd. 1, and 18 U.S.C. 2516(2). We reject appellants' contention and hold that neither the federal nor state wiretap statutes require the county attorney to appear in person before the district court judge issuing a wiretap warrant.
18 U.S.C. 2516(2) provides in part:
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, * * *.
(Emphasis supplied.)
Minn.Stat. § 626A.05, subd. 1, provides:
Application for warrant. The attorney general, or not more than one assistant or special assistant attorney general specifically designated by the attorney general or a county attorney of any county or not more than one assistant county attorney specifically designated by the county attorney may make application as provided in section 626A.06 to a judge of the district court or of the supreme court for a warrant authorizing or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made. No court commissioner shall issue a warrant under sections 626A.01 to 626A.23.
(Emphasis supplied.)
Minn.Stat. § 626A.06, subd. 1, provides, in part:
The applications. Each application for a warrant authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of the district court or of the supreme court and shall state the applicant\'s authority to make such application. Each application shall include the following information: * * *.
(Emphasis supplied.)
This court has never decided whether a county attorney must personally appear before the issuing judge. At least one federal court has held that the federal statute, 18 U.S.C. 2516(2), does not require the chief prosecuting officer of a political subdivision to appear personally before the issuing judge. Alexander v. Harris, 595 F.2d 87, 89 (2d Cir.1979); United States v. Manfredi, 488 F.2d 588, 601 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Tortorello, 480 F.2d 764, 776-77 (2d Cir.), cert. denied 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973). A personal appearance has been found unnecessary under state statutes as well. See e.g., United States v. Tortorello, 480 F.2d 764, 776-78 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973) (New York statute); State v. Sidoti, 120 N.J.Super. 208, 211, 293 A.2d 678, 680 (App.Div. 1972) (New Jersey statute).
Minn.Stat. §§ 626A.05, subd. 1, and 626A.06, subd. 1, do not expressly require the county attorney to personally appear before the issuing judge. The law enforcement officer actually conducting a particular investigation, as in this case, is generally in a better position to answer questions concerning probable cause, and that is the only practical justification for requiring a personal appearance. Requiring a formalistic appearance by the county attorney before the issuing judge in every case would not further the individual privacy interests the Act is designed to protect.
2. Appellants contend the wiretap evidence should have been suppressed because the application does not establish that normal investigative techniques were insufficient to obtain evidence of drug trafficking. The argument is based on Minn.Stat. § 626A.06, subd. 1(c), which requires each wiretap application to contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Minn.Stat. § 626A.06, subd. 3(c), requires the issuing judge to make a finding that other investigative procedures are inadequate for one of the reasons stated in § 626A.06, subd. 1(c). The trial court correctly found that the application sufficiently established the inadequacy of normal investigative techniques.
Although subds. 1(c) and 3(c) of § 626A.06 have never been construed by this court, the corresponding provisions of the federal statute, 18 U.S.C. 2518(1)(c) and (3)(c), have received extensive scrutiny. These sections were enacted to insure that wiretaps were not resorted to in those situations where traditional investigative techniques would suffice to expose the crime. United...
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