U.S. v. Bernstein

• Decision Date: 24 January 1975
• Docket Number: No. 74--1066,74--1066
• Citation: 509 F.2d 996
• Parties: UNITED STATES of America, Appellant, v. Calman BERNSTEIN, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 996

509 F.2d 996

UNITED STATES of America, Appellant, v. Calman BERNSTEIN, Appellee.

No. 74--1066.

United States Court of Appeals Fourth Circuit.

Argued Sept. 30, 1974.

Decided Jan. 24, 1975.

Marc Philip Richman, Atty., U.S. Dept. of Justice (George Beall, U.S. Atty. for the District of Maryland, David E. Holt, Jr., Sp. Atty. and Peter M. Shannon, Jr., Atty., Dept. of Justice, on brief), for appellant.

Arnold M. Weiner, Baltimore, Md. (M. Albert Figinski, Baltimore, Md., on brief), for appellee.

Before CRAVEN, BUTZNER and FIELD, Circuit Judges.

BUTZNER, Circuit Judge:

The United States appeals from a district court order that suppressed Calman Bernstein's intercepted phone calls as evidence against him. The court found that when the government applied for the intercept order extensions, under which the conversations were later seized, its agents knew that Bernstein was committing the crime under investigation and would use the telephone they sought to tap. Because Bernstein was not identified in either the applications or the extensions, in violation of Title III of the Omnibus Crime Control and Safe Streets Act, the court suppressed the conversations. Its opinions are reported as United States v. Curreri, 368 F.Supp. 757 (D.Md.1973), and United States v. Bleau, 363 F.Supp. 438 (D.Md.1973).

The wiretaps were part of an investigation of numbers bookmaking. The first intercept order was obtained on March 30, 1972, and extensions were granted on April 14, May 1, and May 17. After Bernstein and others were indicted for conducting an illegal gambling business, he moved to suppress conversations seized under both the original order and the extensions. The district court found that although government agents had probable cause to believe that Bernstein was involved in the business before they applied for the March 30 order, they did not know that he would use the tapped telephones. Consequently, it denied Bernstein's motion to suppress the conversations obtained by the first interception. Bernstein has not appealed this order.

The court then found that before the agents applied for the April 14 extension order, information from the first interception had given them probable cause to believe that Bernstein would be overheard on a tapped telephone. Their failure to identify him in that and subsequent applications, it held, rendered the interceptions obtained after April 14 unlawful with respect to him. Accordingly, the court suppressed them. We affirm.

I

The application for a wiretap order must include 'a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including . . . the identity of the person, if known, committing the offense and whose communications are to be intercepted.' ¹ Extensions of an intercept order require a new application containing the same information needed for the original one. ² The order must specify 'the identity of the person, if known, whose communications are to be intercepted.' ³ Since it is only through the application that the judge learns the identity of the person whose conversations are to be intercepted, the identification requirement for the order is no broader than for the application. United States v. Kahn, 415 U.S. 143, 152, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). The critical issue in this case, therefore, is whether the omission from a wiretap application of the name of a known offender whose communications are to be overheard dictates suppressing his conversations as unlawfully intercepted when the government proposes to use them against him. ⁴

Not every violation of Title III results in an unlawful interception. A violation is material only if Congress intended the statutory provision that was not followed to be 'a precondition to obtaining . . . intercept authority.' United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). ⁵ Statutory preconditions, teaches the Court, 'directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.' 416 U.S. at 527, 94 S.Ct. at 1826. In contrast, violation of a statutory provision that does not 'affect the fulfillment of any of the reviewing or approval functions required by Congress,' does not render an interception unlawful within the meaning of § 2518(10)(a)(i). United States v. Chavez, 416 U.S. 562, 575, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380 (1974). ⁶ Whether a statutory provision is a precondition to a valid order depends, then, on its role in the Act's system of restraints on electronic surveillance.

Title III was drafted to protect the privacy of wire and oral communications while allowing the use of electronic surveillance in the investigation of certain crimes. It restricts eavesdropping by law enforcement officers both to conform to the fourth amendment and to prevent abuse even of constitutional surveillance. The government contends that the identification requirement serves neither end and that its violation is a mere technical omission. But when the entire statute is considered, identification is seen to facilitate both constitutional and congressional limits on eavesdropping.

Electronic interception of communications is a form of search and seizure subject to the fourth amendment. Unless a party to the conversation consents, the amendment only permits interceptions with prior judicial approval to gather information about a specific crime for a limited time from a particular place. Therefore, the amendment prohibits eavesdropping to collect general intelligence about individuals. See generally United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Several provisions of Title III directly implement these restrictions. ⁷ Though dictum in United States v. Kahn, 415 U.S. 143, 155 n.15, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), indicates that the fourth amendment might not require naming a known offender whose conversations are to be intercepted, ⁸ identification nevertheless fosters conformity with both constitutional and statutory requirements. In particular, it is important to the exercise of (A) executive approval, (B) prior judicial authorization, and (C) subsequent judicial review of interceptions.

A

In order to allow only necessary electronic surveillance, Congress imposed preconditions not required by the Constitution, including restriction of federal authority to request intercept orders to the Attorney General or a designated Assistant Attorney General. 18 U.S.C. § 2516(1); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). When deciding whether to approve surveillance, however, the Attorney General depends on information from law enforcement officials. If his subordinates do not identify known persons whose conversations they wish to intercept, they effectively substitute their judgment for his. It is therefore apparent that identification, as required by § 2518(1)(b)(iv), is essential to the discharge of responsibility which the Act places on the Attorney General or his designate. ⁹

B

Both the fourth amendment and Title III require prior judicial authorization of electronic eavesdropping in order to forestall abuses by enforcement officials. 18 U.S.C. §§ 2511, 2518(3); United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Issuing an intercept order is not simply a ministerial act, for the judge must decide that the constitutional and statutory justifications for the intrusion exist. So that the judge can be as informed as possible in an ex parte hearing, Congress required the applicant for an intercept order to furnish the necessary facts in considerable detail. See 18 U.S.C. § 2518(1); cf. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Included in the information the government must furnish is a complete history of the electronic surveillance of the persons named in the application. ¹⁰ Omission of this information is a statutory violation that invalidates any interceptions with respect to the persons not listed. United States v. Bellosi, 501 F.2d 833 (D.C.Cir. 1974). As that case explains, Congress believed that information about prior surveillance is 'necessary to judicial consideration of whether the proposed intrusion on privacy is justified by important crime control needs.' 501 F.2d at 837. But a history of prior taps involving the same person is available to the court only when he is named in the application. Identification required by the Act, therefore, facilitates judicial control by providing the complete history that Congress deemed necessary for an informed decision.

C

In Berger v. New York, 388 U.S. 41, 60, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), the Supreme Court held that notice of a search is an essential element of judicial control over the execution of intercept orders. Secrecy, it reasoned, could make vindication of fourth amendment rights impossible, especially when the government did not intend to use the intercepted conversations as evidence. Conforming to the Constitution, Title III requires service of notice on 'the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine,' informing them that an interception was applied for and either denied or carried out. 18 U.S.C. § 2518(8)(d). This notice, the legislative history explains, 'should insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least...