State v. Wilson

• Decision Date: 05 June 1973
• Parties: STATE of Delaware, Plaintiff, v. George Lee WILSON et al., Defendants.
• Court: Delaware Superior Court

Page 743

306 A.2d 743

STATE of Delaware, Plaintiff, v. George Lee WILSON et al., Defendants.

Superior Court of Delaware, New Castle County.

June 5, 1973.

Jerome O. Herlihy, Chief Deputy Atty. Gen., Wilmington, for plaintiff.

James A. Erisman, Wilmington, for defendants George Lee Wilson and Buster Edgar Sweet.

Arlen B. Mekler, Public Defender, Wilmington, for defendants Willard Freeman, Kathleen Donahoe, Joann Jenkins and Bernice Marsh.

Martin A. Schagrin, Wilmington, for defendant John E. Williams.

OPINION

BUSH, Judge.

The defendants have been charged with various violations of the State drug laws. Motions to suppress the contents of intercepted telephone communications and all evidence resulting therefrom have been filed on behalf of all of the defendants in the several cases. The wiretap involved was conducted by members of the Wilmington, New Castle County and Delaware State Police Departments, pursuant to an order of a Superior Court judge issued on August 1, 1972. The telephone involved in all the motions was located at 203 Concord Avenue, Wilmington, Delaware, and was listed in the name of George Lee Wilson. Defendant Wilson was the only individual specifically named, but the cases against certain of the defendants are based on evidence obtained against them as a result of the wiretap authorized against Wilson. For purposes of ruling on the motions, the cases shall be treated as one. The necessary factual background will be set forth when pertinent to the resolution of a given issue.

Broadly stated, defendants raise two issues: (1) whether 11 Del.C. § 757, The Delaware Wiretapping and Electronic Surveillance Act, violates on its face the First Fourth, and Fifth Amendments to the Constitution of the United States and Article 1, Section 6 of the Constitution of the State of Delaware, Del.C.Ann.; and (2) whether 11 Del.C. § 757, as applied in the present instance, violates the Fourth Amendment.

Defendants' first argument is that wiretapping is intrinsically violative of the First Amendment since fear of electronic surveillance inhibits the exercise of the rights guaranteed thereby.

This Court does not feel that fear of surveillance of communications, when that surveillance is circumscribed under Fourth Amendment standards, amounts to a denial of free speech under the First Amendment. This Court finds 11 Del.C. § 757 not violative of First Amendments rights. See United States v. Escardar, 319 F.Supp. 295, 302 (S.D.Fla.1970); State v. Siegel, 13 Md.App. 444, 285 A.2d 671, 677 (1971) aff'd 266 Md. 256, 292 A.2d 86 (1972).

Defendants also contend that 11 Del.C. § 757 violates the Fifth Amendment since it allows incriminating testimonial statements obtained through wiretaps to be used as evidence against an individual contrary to his will.

The Supreme Court has treated statements seized by means of electronic surveillance as a search subject to the requirements of the Fourth Amendment. Therefore, the provisions of 11 Del.C. § 757 relate to searches and seizures, and must satisfy the requirements of the Fourth Amendment. Since this Court holds, as will be discussed below, that 11 Del.C. § 757 meets these requirements, it cannot be validly maintained that the Statute's provisions violate the privilege against self-incrimination. Such a reading would render the Fourth Amendment protections as set out in Berger v. State of 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) a redundancy. Therefore, this Court holds that 11 Del.C. § 757 does not violate the Fifth Amendment. See United States v. Escardar, 319 F.Supp. 295, 302 (S.D.Fla.1970); United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973).

Defendants' broadest attack on the constitutionality of 11 Del.C. § 757 is based on the Fourth Amendment and Article 1, Section 6 of the Delaware Constitution. It is argued that 11 Del.C. § 757 violates the Fourth Amendment both facially and as applied in the present case. The arguments as to facial invalidity will be considered first.

Defendants initially contend that the Fourth Amendment precludes 'any' electronic surveillance since wiretapping is inherently violative of the right to privacy. This Court refuses to so hold since such a contention was rejected in Berger, supra, 388 U.S. at 49--53, 87 S.Ct. 1873.

Defendants next contend that the duration and continuous nature of the search permitted by 11 Del.C. § 757 results in its unconstitutionality. Specifically, it is argued that the statute is not precise nor carefully circumscribed and permits interception for up to a third-day period with one showing of probable cause. Therefore, it is said that the statute presents the constitutional objection to lengthy surveillance expressed in Berger.

This Court finds the arguments unpersuasive. The Statute's intrusion is precisely confined. Section 757(h)(3) requires that each application must contain

'A particular statement of the facts . . . including:

(b) The details as to the particular offense . . .

(c) The particular type of communication to be intercepted;

(d) The nature and location of the particular wire communication facilities involved on the particular place where the oral communication is to be intercepted;

. . .'

Further, an order may issue only if the Court, upon consideration of the application, is able to make the specific findings required by 11 Del.C. § 757(i). Finally, the order itself must conform with the requirements of 11 Del.C. § 757(k). In short, this Court believes that 11 Del.C. § 757 is as precise and limited as are the requirements of Berger and Katz.

In regard to the argument that the statute is unconstitutional because it allows a thirty-day continuous search with one showing of probable cause, it must be noted that the thirty-day period is a statutory maximum. The specific life span of each order is determined by the particular facts of the case; and, therefore, may be much shorter than the thirty-day maximum. Moreover, each interception is subject to termination prior to the running of the full authorized life span since 11 Del.C. § 757(k) provides that the order may require progress reports to the issuing judge which can possibly result in the early termination of the surveillance. Finally, this Court interprets section 757(k)(6) as requiring automatic termination when the described communication has been first obtained unless the judge finds probable cause to justify continued surveillance. Support for this position is found in the language of section 757(h)(3)(e) which requires that where automatic termination is not desired upon first obtaining the described communication, the application must specifically set forth facts establishing probable cause to believe that additional communications of the same type will be received. Therefore, section 757(k)(6) requires automatic termination in all cases, even if no such statement is contained in the order, unless probable cause has been established to believe that additional communications of the same type will be received and the order includes a statement that the order will not automatically terminate.

The Statute's intrusion is within the limits of Berger since the requirements for obtaining an order are precise; the thirty-day period is a statutory 'maximum'; the order is subject to judicial review at any time; and the order is subject to automatic termination.

Defendants also argue that the Statute allows too much discretion in the executing officers. This argument is closely related to the contention immediately above that 11 Del.C. § 757 permits continuous interceptions of the type held unconstitutional in Berger.

The conclusion in Berger, however, was based upon two grounds: (1) the duration of the warrant, and (2) the failure to confine the investigator's latitude with various safeguards. United States v. Cox, 462 F.2d 1293, 1303 (8th Cir. 1972). Both of these shortcomings have been corrected in 11 Del.C. § 757.

As to the first ground, since this Court has found that automatic termination is mandatory (except in the limited instance where probable cause exists to believe that communications of the same type will be received and the order states that it shall not automatically terminate) the Statute allows considerably less discretion to the executing officer than that found to be unconstitutional in Berger. The Officer can no longer continue surveillance without effective judicial supervision since if the surveillance is improperly continued after the authorization has terminated such surveillance is unlawful and subject to suppression. 11 Del.C. § 757(t). As a result, this Court believes that the Delaware Statute has cured the first ground of unconstitutionality found in Berger.

Likewise, this Court also finds that 11 Del.C. § 757 is not subject to attack for allowing the executing officers too much discretion as to the type of information to be intercepted. The reason for this finding is that the statute requires, in both the application and the order, a particular description of the type of communication sought to be intercepted. 11 Del.C. § 757(h)(3)(c) and (k)(4). Further, section 757(t) provides for relief if:

'. . . (1) The communication was unlawfully intercepted;

(2) The order of authorization is insufficient on its face;

(3) The interception was not made in conformity with the order of authorization.'

The Statute requires precision in describing the object of the interception and appropriate relief for abuse.

Thus, the Court rejects defendants' argument that 11 Del.C. § 757 allows too much discretion to the executing officers.

Defendants' final attack as to the facial unconstitutionality of 11 Del.C. § 757 is that the Delaware Statute is deficient in not requiring prompt notice after authorized surveillance has been completed to those people whose conversation has been intercepted.

11 Del.C. § 757(n) requires...