State v. Thompson
| Citation | 464 A.2d 799,191 Conn. 360 |
| Parties | STATE of Connecticut v. Neil J. THOMPSON. STATE of Connecticut v. Robert E. PARKER, Jr. STATE of Connecticut v. James C. BLACK. STATE of Connecticut v. Frank P. LePORE. |
| Decision Date | 06 September 1983 |
| Court | Supreme Court of Connecticut |
Francis M. McDonald, State's Atty., with whom were Bradford J. Ward, Asst. State's Atty., and on the brief, Austin J. McGuigan, Chief State's Atty., for appellant in each case (state).
Maxwell Heiman, Bristol, with whom were Louis S. Avitabile, Waterbury, John D. Jessep, Robert M. Richards, Bridgeport, and, on brief, William J. Tracy, Jr., Bristol, for appellee (defendant Parker).
Louis S. Avitabile, Waterbury, for appellee (defendant Thompson).
Before SPEZIALE, C.J., and PETERS, SHEA, GRILLO and COVELLO, JJ.
These appeals concern the extent to which the state police are required to minimize electronic surveillance when conducting telephone wiretaps pursuant to General Statutes § 54-41a et seq. (wiretap statute), in the course of a narcotics investigation. In each case, the trial court dismissed informations charging the defendants Neil J. Thompson, Robert E. Parker, Jr., James C. Black, and Frank P. LePore with conspiracy to possess and distribute narcotics, after the defendants successfully moved, on the basis of inadequate minimization, to suppress evidence obtained from the wiretaps. 1 From the judgments of dismissal, the state has appealed. 2
The trial court, McGrath, J., in its memorandum of decision, found the following facts, now undisputed, concerning the wiretaps at issue in this case: On March 9, 1973, the state's attorneys for Litchfield county and New Haven county at Waterbury applied to a three judge panel for permission to intercept wire communications, pursuant to General Statutes § 54-41b. 3 The application sought authorization to tap two public pay telephones, one located in the lobby of the Austin House Hotel in Terryville and one located just outside the hotel, in order to overhear the conversations of Arnold Albert "and others unknown." The application contained an affidavit purporting to establish the necessity for the proposed wiretap. 4 This affidavit alleged: that Albert and others, including Albert's partner Joseph LeBlond, were importing Mexican heroin into the state and selling it; that Albert and LeBlond were residing at the Austin House Hotel; that Albert used its two public telephones for narcotics transactions; and that the records of calls made from the lobby telephone indicated a continuous pattern of long distance calls to persons in Connecticut known to be heroin dealers and users. The application asked, therefore, for a ten day tap, for twenty-four hours each day, of both public telephones in order to discover the source of Albert's heroin and the extent of his heroin trafficking. The affidavit stated in an amendment, filed on March 14, 1973, that those officers who would conduct the wiretap had been trained in electronic surveillance by the Connecticut, New York or New Jersey state police departments.
The panel, on March 15, 1973, issued order 73-03 "to intercept the telephone communications of Arnold Albert residing/having his place of business at: Austin Hotel, Plymouth, Conn., from 5 p.m. on 15 March 1973 to 5 p.m. on 25 March 1973." The order contained the statutory requirement that the surveillance be "conducted in such a way as to minimize the interception of communications not otherwise subject to interception ...." 5
In the order itself and in the documents accompanying the order, 6 only Albert was identified as the person whose conversations were to be intercepted. Although the order indicated generally that the state's application had been approved without condition, the order did not expressly authorize interception with respect to "others unknown," which the state's application had sought.
The wiretap operations pursuant to the authorized interception of the public telephones at the Austin House Hotel led to a request for a ten day extension of order 73-03. The wiretap panel authorized an extension on the same terms as the original order. Thereafter, on the basis of intercepted evidence that a telephone in Plainville was being used to conduct narcotics operations, the state applied for a second wiretap order. In this application, the state sought "to intercept the wire communications of Daniel A. Wrisley, a/k/a Daniel A. Risley and others unknown" over the telephone listed in his name, in light of evidence procured from the 73-03 wiretap, and elsewhere, which indicated that Wrisley's telephone was being used for narcotics transactions. The application again stated, as had the application for 73-03, that the monitoring officers for the proposed wiretap had been trained in electronic surveillance by the Connecticut, New York or New Jersey state police. The three judge panel approved the application and issued wiretap order 73-04 but again restricted its operation to Wrisley personally, furnishing express authority only "to intercept the telephone communications of (subscriber): Daniel A. Risley residing/having his place of business at: 17 Dewey Place, Plainville, Conn., from 6 p.m. on 28 March 1973 to 6 p.m. on 7 April 1973, inclusive, during 24 hours of each day." Surveillance pursuant to order 73-04 resulted in a successful application to the wiretap panel for a ten day extension of that order. In its extension application, the state relied in part on potentially incriminating conversations, to which Wrisley was not a party, of another person (defendant Parker) who was using the Wrisley telephone to conduct narcotics trafficking. The extension of order 73-04 modified only its date of expiration.
The trial court found that surveillance pursuant to the authorized wiretaps took the form of indiscriminate listening to all communications on the tapped telephones. Although the monitoring equipment could have been shut off or turned down upon a determination that an ongoing conversation was innocent, the police officers assigned to the wiretaps had received little or no instruction with respect to the statutory requirement of minimization. At most, some officers were instructed not to monitor privileged conversations in which one party was a clergyman, doctor or lawyer. 7 Consequently, with the exception of a single call involving a doctor, every call made over the tapped telephones, the public telephones under order 73-03 and the private telephone under order 73-04, was overheard and recorded in full. All calls were summarized in written logs maintained by the monitoring officers.
Although the state argued that narcotics investigations require unlimited interceptions because initially innocuous conversations may subsequently turn to narcotic related subjects and may use narcotic related code words, the trial court concluded that the surveilling agents had failed to comply with the minimization mandates of the wiretap orders themselves and of the statute. The court acknowledged that assessment of minimization depended "upon the facts and circumstances of each case." It recognized the practical difficulties of minimization but refused nonetheless to limit the responsibility to minimize to privileged communications. Because a communication once seized, no matter how wrongly, can never be given back, the court noted that "the right of privacy protected by the fourth amendment has been more invaded where a conversation which can never be returned has been seized than where a physical object which can be returned has been seized." On this basis, the trial court granted the defendants' motions to suppress the evidence obtained through the state's electronic surveillance. The informations against the defendants were thereafter dismissed.
The state raises three issues on appeal. First, it argues that, in determining that the monitoring officers failed to comply with the minimization requirement, the trial court applied an incorrect standard, focusing on the subjective intent of the officers rather than on the objective reasonableness of their conduct under all the circumstances. Second, it argues that, under the circumstances of the present case, it was not objectively unreasonable for the officers to listen to all conversations during the conduct of the wiretaps. Third, it argues that even if the wiretaps were conducted in violation of the minimization requirement, the proper remedy was the suppression only of those conversations which would not have been overheard had proper minimization been effected. We find no error.
The state's first claim of error addresses the standard by which compliance with the minimization required is to be measured. The state maintains that the trial court mistakenly relied on a subjective federal standard which the United States Supreme Court subsequently rejected in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168, reh. denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978). Interpreting the minimization requirement of 18 U.S.C. § 2518(5) (1976 Ed.), 8 Scott held that the federal statute was not necessarily violated by failure to make good faith efforts to comply with the statute's requirement for minimization. Id., 135-36, 98 S.Ct., 1722. Although the record in Scott showed that all conversations over the tapped telephones were recorded and only 40 percent were related to the stated subject of the investigation, the Supreme Court held that: Id., 140, 98 S.Ct., 1724.
The state argues that the trial court failed to follow the rule in Scott because...
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