U.S. v. Santora

• Decision Date: 06 October 1978
• Docket Number: 76-3485,76-3521,76-3446,76-3525,76-3711 and 77-2626,Nos. 76-3440,76-3567,s. 76-3440
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald SANTORA, Earl Rardin, Maurice Eugene Lickteig, Theresa Sohn, Garth Jon Brian Upton, Roy Cohn, Mary Evans, and Walter P. Moore, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 453

583 F.2d 453

UNITED STATES of America, Plaintiff-Appellee, v. Ronald SANTORA, Earl Rardin, Maurice Eugene Lickteig, Theresa Sohn, Garth Jon Brian Upton, Roy Cohn, Mary Evans, and Walter P. Moore,

Defendants-Appellants.

Nos. 76-3440, 76-3446, 76-3485, 76-3521, 76-3525, 76-3567,

76-3711 and 77-2626.

United States Court of Appeals, Ninth Circuit.

Oct. 6, 1978.

Rehearing and Rehearing En Banc Denied Jan. 11. 1979.

Howard W. Gillingham (argued), Joe Reichmann (argued), Los Angeles, Cal., Gordon J. Rose (argued), Beverly Hills, Cal., Jonathan M. Yost (argued), Santa Monica, Cal., S. G. Jackson (argued), Kenneth L. Collins (argued), Los Angeles, Cal., James Edward Morgan (argued), Beverly Hills, Cal., for defendants-appellants.

Ronald W. Rose (argued), Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUFSTEDLER and ANDERSON, Circuit Judges, and KING, ^* District Judge.

HUFSTEDLER, Circuit Judge:

These consolidated appeals raise a series of issues relating to the validity, the interpretation and effect of four court orders authorizing FBI agents to wiretap several telephones and to permit FBI agents to break into a business premise for the purpose of installing, servicing, and removing an electronic listening device. With trivial exceptions, the Government's cases rested upon evidence that was the product of electronic surveillance conducted pursuant to court orders. Each of the appellants filed motions to suppress evidence gathered by electronic surveillance and the fruit of the intercepted conversations. These consolidated appeals present a number of issues common to all appellants, and others that relate to each individually.

The appeals arise from two separate indictments. One indictment charged 16 persons with various offenses involving traffic in stolen airline tickets. Santora, Evans, Lickteig, and Moore appeal from their convictions on various counts of the indictment charging stolen airline ticket offenses. The second indictment charged 11 persons with offenses involving traffic in controlled substances. Rardin, Cohn, Upton, and Sohn appeal from their convictions on various counts of the narcotics indictment.

I. THE INTERCEPTION ORDERS

Four court interception orders are involved in this appeal. The first, interception Order No. 4651, was issued by the district court on April 1, 1975. It authorized FBI agents to conduct electronic surveillance, by means of a bug and two wiretaps, at the AAA Appliance Company, a small vacuum cleaner and sewing machine sales and service business located in Inglewood, California. More specifically, the district court order authorized special agents of the FBI: "to enter the premises known as the office of Ronald Santora, at AAA Appliance Company, . . . without permission of the owners, occupants, or lessees thereof and to install, maintain, and subsequently remove from said premises equipment for the interception of oral communications; and to intercept oral communications taking place within said office or within range of said equipment and to intercept wire communications to and from the above-described telephones . . .." The two telephone taps authorized by this order were instituted on April 2, 1975. Federal agents broke into AAA at nighttime on April 3, 1975, and installed a bug within the premises.

Based on information obtained through both the bug and the wiretaps, the Government applied for another court order extending the period of permissible use of the devices. On May 12, 1975, the district court issued Order No. 4719, which extended the period of authorized surveillance for an additional 20 days. The extension order repeated the terms of the initial intercept order (including its entry provision) almost verbatim.

Two other interception orders were obtained by the Government. On April 21, 1975, the district court approved interception Order No. 4676, which authorized the tapping of a coin-operated public telephone located outside the premises of the AAA Appliance Company. The Government's application for this order cited incriminating conversations overheard by the wiretaps on the company's telephones, as well as visual observations of the suspected conspirators using the public phone outside the company. No information obtained through use of the bug was used to obtain the new interception order.

Interception Order No. 4700, issued on May 2, 1975, authorized wiretaps on five additional telephones. The Government's probable cause affidavit used to obtain this order included information obtained from the wiretaps on the company telephones, the bug in the company office, and the tap on the public phone. To support the claim that wiretapping was necessary, the Government relied primarily on prior statements made in the application for the initial interception order. However, none of the persons whose telephones were tapped pursuant to Order No. 4700 had been named in the initial interception application.

II. THE ISSUES DECIDED

These appeals raise three principal issues. First, we must consider a series of challenges to the validity of the initial intercept order as a whole. Second, we must decide a question of first impression in this Circuit: Does Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 Et seq., permit courts to authorize break-ins for the purpose of planting bugging devices? Third, we must determine whether a prior showing of the inadequacy of investigative alternatives is sufficient to support authority to tap phones of additional persons not named in the previous intercept application.

For reasons outlined below, we hold that the initial interception order was valid insofar as it authorized wiretapping of the AAA Appliance Company's telephones. But because we hold that Title III does not empower courts to authorize break-ins, the break-in and bugging of the company was invalid, and all evidentiary fruits of this bug are tainted. Thus evidence obtained pursuant to intercept Order No. 4719 (renewal of initial wiretaps) and No. 4700 (tapping of five additional private phones) must be suppressed as to those defendants with standing to object to its use. Furthermore, because we conclude that the Government's showing of the inadequacy of alternative techniques is insufficient to support Order No. 4700, evidence obtained pursuant to this order is subject to suppression on an additional ground.

We first discuss the legal challenges to the electronic surveillance orders, and thereafter we undertake an examination of the contentions of the individual appellants which are not resolved by our disposition of the electronic surveillance orders.

III. CHALLENGES TO THE INITIAL INTERCEPTION ORDER AS A WHOLE

The initial interception order (No. 4651), which permitted bugging of the appliance company and tapping of two company phones, is challenged in its entirety on three grounds. First, it is argued that the application for the order was defective because the Government did not produce evidence showing that the Attorney General personally reviewed the facts prior to signing the authorization. This contention need not long detain us. We have heretofore rejected the contention that an Attorney General's authorization for a wiretap is defective in absence of a showing that the Attorney General reached his decision to authorize a wiretap only after evaluation of the factual foundation for the recommendation upon which he relies. (United States v. Feldman (9th Cir. 1976) 535 F.2d 1175; United States v. Turner (9th Cir. 1975) 528 F.2d 143.)

Second, appellants argue that the Government's initial application failed to make a particularized showing of the improbability of success or a high degree of danger from the use of alternative investigative techniques, as required by 18 U.S.C. § 2518(1)(c). This contention also fails. The Government presented the affidavit of Agent Blair, which contained a series of factual representations concerning the agents' efforts to use normal investigative procedures, all of which were unsuccessful. It also referred to the refusal of informants to testify or to help agents infiltrate the conspiracy for fear of retaliation. The showings in Agent Blair's affidavit cannot be successfully distinguished from the showings held adequate in such cases as United States v. Abascal (9th Cir. 1977) 564 F.2d 821; United States v. Feldman, supra, 535 F.2d 1175. (See also United States v. Turner,supra, 528 F.2d at 152; United States v. Kerrigan (9th Cir. 1975) 514 F.2d 35, 38.)

Finally, appellants claim that the district court erred in denying an evidentiary hearing upon the minimization issue. The order specifically required minimization in conformity with 18 U.S.C. § 2518(5). In response to appellants' suppression motions premised on an alleged failure to follow minimization requirements, the Government filed an affidavit of Agent Blair, together with charts showing the number and kinds of conversations that had been intercepted pursuant to the court order. None of the appellants specifically sought an evidentiary hearing on the minimization question. The district court found that the agents had acted in good faith and in exercise of ordinary care and judgment in trying to minimize the interceptions. The appellants have failed to cite any authority requiring the district court, Sua sponte, to order an evidentiary hearing when an issue is raised concerning minimization. We decline to supply any. Rather, the question whether an evidentiary hearing is appropriate rests on the reasoned discretion of the district court. The district court's failure to order an evidentiary hearing on its own motion is not an abuse of discretion in this case. The logs of the intercepted conversations, together with Agent Blair's affidavit, established a Prima facie case that adequate minimization had been undertaken in a good faith,...