U.S., Application of

• Decision Date: 20 September 1977
• Docket Number: Nos. 77-1238,77-1284,s. 77-1238
• Parties: Application of the UNITED STATES for an Order Authorizing the Interception of Oral Communications, Appellant. In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 637

563 F.2d 637

Application of the UNITED STATES for an Order Authorizing

the Interception of Oral Communications, Appellant.

In re UNITED STATES of America, Petitioner.

Nos. 77-1238, 77-1284.

United States Court of Appeals, Fourth Circuit.

Submitted July 21, 1977.

Decided Sept. 20, 1977.

Jervis S. Finney, U. S. Atty., and Daniel F. Goldstein, Asst. U. S. Atty., Baltimore, Md., for appellant.

Stephen H. Sachs, James A. Rothschild and Robert B. Levin, Baltimore, Md., for appellee.

Before WINTER and BUTZNER, Circuit Judges, and FIELD, Senior Circuit Judge.

FIELD, Senior Circuit Judge:

Frustrated by their own inability to gather sufficient evidence to prosecute several individuals suspected of running a gambling operation in violation of Maryland law, local authorities requested the help of the FBI in late 1976. Until that time, the local probe had proceeded with the help of confidential informants, physical surveillance, a state court-approved wiretap and one instance of other electronic surveillance. It had reached an impasse, however, when the local agents failed in their attempts to intercept what were considered to be crucial conversations occurring within a commercial building where the principal suspects allegedly settled their accounts. The request for federal assistance was made in the hope that the FBI could succeed where the local authorities had failed. Cooperation was justified on the ground that the individuals under investigation were believed to be violating not only Md.Ann.Code art. 27, §§ 240 (illegal bookmaking) and 356 et seq. (illegal lottery), but also 18 U.S.C. §§ 1955 (illegal gambling business) and 371 (conspiracy).

Upon entering the case, the FBI concluded (1) that the interception of oral communications within the commercial building was the only available method of investigation which had a reasonable likelihood of securing the evidence necessary to prove the violations of law, and (2) that the only feasible method of interception would entail surreptitious entry of the building to install, maintain, and retrieve listening devices. ¹ It was proposed that three listening devices be placed on the premises, one in a private office and two in a part of the building open to the public. The latter two would be activated only when that part of the building was closed to the public and when it was verified that one or more of the target individuals were present.

On December 20, 1976, the Government applied to the United States District Court for the District of Maryland for an order under 18 U.S.C. § 2518 which would have expressly authorized both the interceptions and one or more surreptitious entries at the commercial premises. An in camera hearing was held on the application the same day.

By memorandum and order dated December 30, 1976, ² the district judge denied the order, although he found that the application met the formal and substantive requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Specifically, the district court agreed that the bugging of the commercial establishment was the only avenue then open to the Government if the investigation was to proceed, ³ and that this could only be accomplished by the use of surreptitious entry. Nonetheless, the court concluded that under the Fourth Amendment standard of "reasonableness," the Government was required to establish some "paramount" or "compelling" interest to justify judicial authorization of the surreptitious entry needed to install the bug, and that such a showing had not been made in this case.

Seeking reversal of the district court's decision, the Government petitioned this court to exercise its appellate jurisdiction under 18 U.S.C. § 3731 or 28 U.S.C. § 1291 (Case No. 77-1238) or, in the alternative, to direct a writ of mandamus to the district judge (Case No. 77-1284). Today we explain more fully our memorandum and order of July 26, 1977, in which, on an expedited basis, we denied the petition for a writ of mandamus in No. 77-1284, accepted appellate jurisdiction under 28 U.S.C. § 1291 in No. 77-1238, reversed the order of the district court, and remanded the case for further proceedings.

The circumstances and conditions under which law enforcement authorities may legally intercept the contents of private wire and oral communications are spelled out in detail by section 802, Title III, of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. while the act acknowledges the practical dIstinction between " wiretapping" and "bugging," see 18 U.S.C. §§ 2510(1), (2), (4), it establishes the same scheme for the judicial authorization of either type of surveillance. Thus, our summary of that scheme with respect to wiretapping in United States v. Bobo, 477 F.2d 974, 980-982 (4 Cir., 1973), cert. denied421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774 (1975), pertains similarly to the procedure which the Government and the district court were required to follow in this case.

I

Before proceeding to the substance of the Government's claims, we consider briefly the appellee's contention that we are without jurisdiction to review the lower court's denial of the application to intercept the target conversations.

First of all, we note that the Government does not advance 18 U.S.C. § 2518(10)(b) as a basis for appeal. That section gives the Government the right to appeal from an order granting a motion to suppress made under 18 U.S.C. § 2518(10)(a), or the denial of an application for an order of approval for emergency electronic surveillance made pursuant to 18 U.S.C. § 2518(7). ⁴ The Government points out, however, that section 2518(10)(b) is not exclusive and by its terms the appeals authorized in the two specified circumstances are "(i)n addition to any other right to appeal * * * ." Accordingly, the Government contends that it has a right to appeal the district court's order under either 18 U.S.C. § 3731 or 28 U.S.C. § 1291.

We agree with counsel for the appellee that appellate jurisdiction of this case cannot be based upon 18 U.S.C. § 3731. That statute provides in pertinent part:

"An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding * * * ." (Emphasis supplied).

In our opinion this case cannot be characterized as a criminal proceeding within the context of the statute since it has arisen prior to any indictment or even a grand jury proceeding. It involves only an investigatory proceeding through which, at best, the Government entertains the mere expectancy of obtaining evidence of crime. The Government has cited no authority directly supporting its position, and its tangential reliance upon Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), and United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), is wide of the mark. On this jurisdictional point we are inclined to agree with Professor Moore that "(i)n view of the familiar principal of strict construction of the Government's right of appeal in criminal cases, it would appear that an order refusing to authorize interception is not appealable." 9 Moore's Federal Practice, P 110.10(7) at 232 (2d Ed. 1975).

We are of the opinion, however, that we have jurisdiction of the present case under 28 U.S.C. § 1291 since the district court's order was a "final decision" within the meaning of the statute. As we have pointed out, the Government's application was not filed in a pending trial or criminal proceeding, but rather in an independent plenary proceeding pursuant to the statutory provisions of Title III, and the order of the district court denying the application was dispositive thereof and had the requisite finality to make it appealable under section 1291. See United States v. Wallace Co., 336 U.S. 793, 802, 69 S.Ct. 824, 93 L.Ed. 1042 (1949), and United States v. Calandra, 455 F.2d 750, 752 (6 Cir. 1972).

At this juncture, decisions of the appealability of orders dealing with electronic surveillance under Title III are understandably sparse. The Ninth Circuit had occasion to consider the question in Application of the United States, 427 F.2d 639 (1970), and although the order in that case was somewhat ambiguous, the court of appeals concluded that since the trial court's denial of the Government's request "was truly dispositive of the Government's entire application," it was a final decision which was reviewable under section 1291. We agree with the decision in that case and accept it as supportive of our conclusion.

Counsel for the appellee suggest that the district court order is not final and appealable, contending that 18 U.S.C. § 2518(1)(e) permits the Government to make successive applications to other judges of the district court in Maryland. Section 2518(1)(e) provides in part as follows:

"(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:

(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; * * *."

The legislative history of Title III does not amplify the meaning of this statutory section, but in United States v. Bellosi, 163 U.S.App.D.C. 273, 276, 501 F.2d 833, 836 (1974), the court concluded that the legislative intent was "strictly to limit the...