U.S. v. Dalia, No. 77-1277

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtBefore ROSENN and HIGGINBOTHAM, Circuit Judges, and VanARTSDALEN; HIGGINBOTHAM; Lacey
Citation575 F.2d 1344
PartiesUNITED STATES of America, Appellee, v. Lawrence DALIA, Appellant.
Docket NumberNo. 77-1277
Decision Date03 May 1978

Page 1344

575 F.2d 1344
UNITED STATES of America, Appellee,
v.
Lawrence DALIA, Appellant.
No. 77-1277.
United States Court of Appeals,
Third Circuit.
Argued Jan. 5, 1978.
Decided May 3, 1978.

Jonathan L. Goldstein, U. S. Atty., Maryanne T. Desmond, Asst. U. S. Atty., Chief, Appeals Div., Newark, N. J., for appellee.

Louis Ruprecht, Ruprecht & Graham, Newark, N. J., for appellant.

Before ROSENN and HIGGINBOTHAM, Circuit Judges, and VanARTSDALEN, District Judge. *

OPINION OF THE COURT

HIGGINBOTHAM, Circuit Judge.

The crucial issue before this Court in this appeal from a final judgment of conviction stems from the use of electronic surveillance to obtain evidence of Lawrence Dalia's complicity in the crimes of which he was found guilty. Dalia was found guilty under two counts of a five-court indictment for conspiracy to transport, receive and possess stolen goods in violation of 18 U.S.C. § 371 (1970) and for receiving stolen goods while in interstate commerce in violation of 18 U.S.C. §§ 2, 2315 (1970). Dalia's co-defendant, Daniel Rizzo, pleaded guilty to the offenses charged in the indictment prior to the commencement of the trial. Five named co-conspirators were charged in a prior indictment and pleaded guilty to the charge of possessing goods stolen in interstate commerce in violation of 18 U.S.C. § 659 (1970). These five individuals were arrested on April 5, 1973, by FBI agents who, in the execution of a search warrant,

Page 1345

found the stolen 664 rolls of polyester fabric valued at approximately $250,000. These rolls of fabric were the same goods underlying the offenses for which the appellant, Dalia, was convicted. Dalia was sentenced to serve two concurrent five-year terms.

I.

On March 14, 1973, Judge Frederick B. Lacey granted the United States Department of Justice authorization to intercept wire communications emanating from two telephones located in Dalia's business office pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. The original order authorized wire interception for a period of twenty days. Upon the expiration of that order a new order was issued authorizing the interception of both wire and oral communications. The second order, issued April 5, 1973, provided that the Special Agents of the FBI were authorized to:

Intercept oral communications of Larry Dalia, and others as yet unknown, concerning the above-described offenses at the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the north westernly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey.

By an order dated April 27, 1973, the authorization to intercept oral and wire communications was extended for a maximum of twenty days. Pursuant to these orders, two business phones used by Dalia were electronically surveilled and a hidden microphone was installed in his place of business. Each interception order directed the Department of Justice to provide the court with progress reports on the fifth, tenth and fifteenth days of surveillance. Finally, on May 16, 1973, the interception of wire and oral communications terminated.

Appellant's major contention on appeal to this Court pursuant to 28 U.S.C. § 1291 is that an electronic listening device was unlawfully installed on his business premises by government agents after gaining entrance by surreptitious entry not explicitly authorized in the court's orders. Therefore, appellant argues, the trial judge erroneously denied his motion to suppress tapes obtained from the oral interception. 1 We agree with Judge Lacey that an order authorizing the...

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4 practice notes
  • Dalia v. United States, No. 77-1722
    • United States
    • United States Supreme Court
    • April 18, 1979
    ...attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. Pp. 257-258. 575 F.2d 1344, affirmed. Page 240 Louis A. Ruprecht, Newark, N.J., for petitioner. Andrew L. Frey, Deputy Sol. Gen., Dept. of Justice, Washington, D.C. f......
  • U.S. v. Santora, Nos. 76-3440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 6, 1978
    ...without specific judicial approval. (United States v. Scafidi (2d Cir. 1977) 564 F.2d 633; United States v. Dalia (3rd Cir. 1978) 575 F.2d 1344.) The Fourth Circuit has held that Title III implicitly authorizes break-ins, but only with specific judicial approval. (Application of United Stat......
  • U.S. v. Finazzo, No. 77-5186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 28, 1978
    ...States v. Scafidi, 564 F.2d 633 (2d Cir. 1977), Cert. den., 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Dalia, 575 F.2d 1344 (3d Cir. 1978), Cert. granted, --- U.S. ----, 99 S.Ct. 78, 58 L.Ed.2d 108), I believe that such intrusive governmental action should require ......
  • APPLICATION OF UNITED STATES OF AM. FOR AN ORDER, Misc. No. 7178.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 19, 1978
    ...of the tracing or trapping process, see State v. Hibbs, 123 N.J. Super. 152, 301 A.2d 789 (1972). 2 Cf. United States v. Dalia, 575 F.2d 1344 (3d Cir. 3 18 U.S.C. § 3105 provides: "A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer......
4 cases
  • Dalia v. United States, No. 77-1722
    • United States
    • United States Supreme Court
    • April 18, 1979
    ...attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. Pp. 257-258. 575 F.2d 1344, affirmed. Page 240 Louis A. Ruprecht, Newark, N.J., for petitioner. Andrew L. Frey, Deputy Sol. Gen., Dept. of Justice, Washington, D.C. f......
  • U.S. v. Santora, Nos. 76-3440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 6, 1978
    ...without specific judicial approval. (United States v. Scafidi (2d Cir. 1977) 564 F.2d 633; United States v. Dalia (3rd Cir. 1978) 575 F.2d 1344.) The Fourth Circuit has held that Title III implicitly authorizes break-ins, but only with specific judicial approval. (Application of United Stat......
  • U.S. v. Finazzo, No. 77-5186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 28, 1978
    ...States v. Scafidi, 564 F.2d 633 (2d Cir. 1977), Cert. den., 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Dalia, 575 F.2d 1344 (3d Cir. 1978), Cert. granted, --- U.S. ----, 99 S.Ct. 78, 58 L.Ed.2d 108), I believe that such intrusive governmental action should require ......
  • APPLICATION OF UNITED STATES OF AM. FOR AN ORDER, Misc. No. 7178.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 19, 1978
    ...of the tracing or trapping process, see State v. Hibbs, 123 N.J. Super. 152, 301 A.2d 789 (1972). 2 Cf. United States v. Dalia, 575 F.2d 1344 (3d Cir. 3 18 U.S.C. § 3105 provides: "A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer......

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