U.S. v. Feldman, s. 78-5312

• Citation: 606 F.2d 673
• Decision Date: 26 September 1979
• Docket Number: Nos. 78-5312,s. 78-5312
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dave FELDMAN, Richard Zalmanowski, and Kenneth Baker, Defendants-Appellants. to 78-5314.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 673

606 F.2d 673

54 A.L.R.Fed. 104

UNITED STATES of America, Plaintiff-Appellee, v. Dave FELDMAN, Richard Zalmanowski, and Kenneth Baker,

Defendants-Appellants.

Nos. 78-5312 to 78-5314.

United States Court of Appeals,

Sixth Circuit.

Argued April 4, 1979.

Decided Sept. 26, 1979.

N. C. DeDay LaRene, Detroit, Mich., for defendants-appellants in No. 78-5312.

James K. Robinson, U. S. Atty., Detroit, Mich., C. Stanley Hunterton, Detroit, Mich., Karen A. Rebrovich, Dept. of Justice, Washington, D.C., for plaintiff-appellee in all three cases.

Philip J. Hirschkop, Victor M. Glasberg, Alexandria, Va., for defendants-appellants in No. 78-5313.

T. George Gilinsky, Washington, D. C., for plaintiff-appellee in No. 78-5313.

James C. Thomas, Royal Oak, Mich., for defendants-appellants in No. 78-5314.

Before CELEBREZZE and LIVELY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

CELEBREZZE, Circuit Judge.

These cases are before the court on direct appeal from judgments of conviction entered upon jury verdicts against appellants Dave Feldman, Richard Zalmanowski, and Kenneth Baker for conducting an illegal gambling business and conspiracy to commit that offense, in violation of 18 U.S.C. §§ 1955, 371, and 2. ¹ These consolidated appeals raise a number of issues relating to the validity and effect of three court orders issued pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ² authorizing wiretaps of several telephones and the surreptitious entry into appellant Zalmanowski's automobile for the purpose of installing, servicing, and removing an electronic listening device. The Government's proof against appellants was largely derived from the electronic surveillance. Each appellant filed appropriate pre-trial motions to suppress the evidence gathered by the electronic surveillance. The district court denied appellants' motions. 455 F.Supp. 26 (E.D.Mich.1977). ³

Appellants raise the following allegations concerning the validity of the interceptions:

1. The evidence derived from the electronic surveillance equipment installed in Zalamanowski's automobile was improperly admitted into evidence in view of the district court's inability, consistent with the fourth amendment and Title III, to authorize a surreptitious entry for the purpose of installing an electronic listening device. Furthermore, the failure on the part of monitoring agents to comply with the minimization requirements of Title III with respect to the Zalmanowski bug also requires suppression.

2. The district court erred in refusing to suppress evidence obtained from a wiretap of a telephone line not authorized to be intercepted.

3. The second two surveillance orders were improperly issued extensions of the first surveillance order and therefore the evidence derived from the second two orders must be suppressed.

For the reasons stated below we reject each of the above contentions and affirm the convictions.

I.

On May 24, 1976, the district court issued an order pursuant to Title III authorizing the interception of wire communications on six telephone lines ⁴ and the interception of oral communications taking place in a 1976 Lincoln Continental leased and operated by Zalmanowski. This order specifically authorized FBI agents to "surreptitiously enter the foregoing vehicle (the 1976 Lincoln Continental) for the purpose of installing, maintaining, and removing any such oral interception devices utilized pursuant to the authority granted." This order required termination of interception within twenty days or upon attainment of the authorized objective, minimization of interceptions, and five, ten and fifteen day progress reports.

On June 17, 1976, the district court granted the Government's request for permission to intercept telephone conversations on five telephone lines, two of which were included in the May 24 order, ⁵ and oral communications taking place in the 1976 Lincoln Continental. This order contained the same termination, minimization, and progress report requirements as the May 24 order. On June 25, 1976, the Government voluntarily terminated interception pursuant to the June 17 order when it discovered that FBI agents were intercepting conversations taking place on a "bootleg telephone" ⁶ instead of conversations taking place on the telephone line they had intended to tap.

On August 5, 1976, the district court issued a third interception order authorizing the interception of oral communications taking place in the Lincoln Continental, the wiretap of two telephone lines in Zalmanowski's residence, and two telephones in the Bruno residence. This third order also required similar termination, minimization, and progress reports.

II.

One of appellants' primary contentions on appeal relates to the evidence derived from the electronic listening device (bug) installed in Zalmanowski's automobile. Appellants assert that the district court lacked authority under Title III and the fourth amendment to authorize FBI agents to surreptitiously enter Zalmanowski's automobile in order to install and remove the bug. Appellants argue that since installation of the bug in Zalmanowski's automobile was in violation of Title III and the fourth amendment the district court erred in failing to suppress the evidence derived from the bug. We disagree. ⁷

Appellants rely on this court's original decision in United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978), Vacated and remanded, --- U.S. ----, 99 S.Ct. 2047, 60 L.Ed.2d 657 (1979), as direct support for their position. In our decision in Finazzo a majority of the court held that no authority exists in Title III permitting a surreptitious entry by officials in order to install an electronic listening device. The court further held that no constitutional authority exists to authorize surreptitious entries in absence of statutory authority. Id. at 850. Our position in Finazzo, however, was specifically rejected by the Supreme Court in Dalia v. United States, --- U.S. ----, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979).

The Supreme Court in resolving a conflict among the circuits ⁸ held in Dalia that "(t)he Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment." Id. at ----, 99 S.Ct. at 1689. The Court further held that Title III authorizes the use of a surreptitious entry in order to install a bug and that Congress clearly understood it was conferring power upon the courts to authorize surreptitious entries when it enacted Title III. Id. at ----, 99 S.Ct. at 1689-92. In view of the Supreme Court's express holdings in Dalia and its subsequent vacation of our opinion in Finazzo, no constitutional or statutory rights maintained by the appellants were violated by the surreptitious entry into the 1976 Lincoln Continental.

The appellants further assert with respect to the evidence derived from the bug placed in Zalmanowski's automobile that it should be suppressed for the reason that FBI monitoring agents failed to comply with the minimization requirements of the district court order and of Title III. ⁹ Specifically, appellants argue that the monitoring agents violated the district court order by installing a bugging device which could not be deactivated by remote control when conversations not otherwise subject to seizure took place in the automobile. Appellants further submit that the bugging device broadcast on a frequency which was accessible to public reception and therefore the bug "broadcast to the world" the conversations taking place in the automobile. It is the nature of the electronic listening device selected for use in the vehicle, not the failure on the part of monitoring agents to cease monitoring conversations not otherwise subject to interception, which is the primary basis of appellants' allegations.

In Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), the Supreme Court articulated the appropriate standard to be applied in determining whether monitoring agents have complied with the minimization requirements of Title III. The Court held that the proper approach for evaluating compliance with the minimization requirement is to objectively assess the reasonableness of the monitoring agents' actions in light of the facts and circumstances confronting them at the time. The focus of the inquiry is to be upon the agents' actions, not their motives or intent, in conducting the surveillance. ¹⁰ Id. at 135-38, 98 S.Ct. 1717.

Many courts in applying the reasonableness test adopted by the Supreme Court in Scott have considered three factors in reviewing the Government's attempts to minimize electronic surveillance; the nature and scope of the criminal investigation; the Government's reasonable expectations of the character of conversations; and, the extent of judicial supervision over the surveillance. See United States v. Hyde, 574 F.2d 856 (5th Cir. 1978); United States v. Clerkley, 556 F.2d 709 (4th Cir. 1977), Cert. denied, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978); United States v. Abascal, 564 F.2d 821 (9th Cir. 1977), Cert. denied, 435 U.S. 942, 98 S.Ct. 1521 (1978); United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007 (D.C.Cir.), Cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). The fourth and second circuits have phrased the inquiry in the following way: "(t)he (minimization) statute is deemed to be satisfied if 'on the whole the agents have shown a high regard for the right of privacy and have done all they reasonably could to avoid unnecessary intrusion.' " United States v. Clerkley, 556 F.2d 709, 716 (4th Cir. 1977), Quoting United States v. Tortorello, 480 F.2d 764, 784 (2d Cir.), Cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973).

When confronted with appellants' arguments on this issue the district court made the following findings:

Any argument made to the effect that the means employed in this case were...