U.S. v. Scott

• Decision Date: 27 June 1974
• Docket Number: 71-1703,Nos. 71-1702,s. 71-1702
• Citation: 164 U.S.App.D.C. 125,504 F.2d 194
• Parties: UNITED STATES of America, Appellant, v. Frank R. SCOTT et al. UNITED STATES of America, Appellant, v. Bernis L. THURMON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 194

504 F.2d 194

164 U.S.App.D.C. 125

UNITED STATES of America, Appellant, v. Frank R. SCOTT et al.

UNITED STATES of America, Appellant, v. Bernis L. THURMON et al.

Nos. 71-1702, 71-1703.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 13, 1972.

Decided June 27, 1974.

Philip L. Kellogg, Asst. U.S. Atty., with whom Thomas A. Flannery, U.S. Atty. at the time the brief was filed, John A. Terry and Donald T. Bucklin, Asst. U.S. Attys., were on the brief, for appellant.

Addison M. Bowman, Washington, D.C. (appointed by this court), for appellees, Spencer, Daviage and Abston.

John A. Shorter, Jr., Washington, D.C., with whom Colie B. Chappelle, Washington, D.C., was on the brief, for appellees Scott and Thurmon.

Before McGOWAN, MacKINNON and ROBB, Circuit Judges.

McGOWAN, Circuit Judge:

The Government appeals a District Court determination that (1) law enforcement forcement officials conducting a judicially authorized wiretap failed to minimize, to the degree required by the statute, interceptions of non-narcotics-related conversations and (2) all evidence derived therefrom should be suppressed. United States v. Scott, 331 F.Supp. 233 (D.D.C.1970). We deferred decision pending action by this court on another case involving common issues, including that of minimization. United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007 (1974). We conclude that the standards for measuring minimization employed by the District Court are at variance with those subsequently announced and thoroughly discussed in James. Accordingly, we remand for reconsideration in light of that opinion and the additional comments contained herein.

I

Pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, officials of the Federal Bureau of Narcotics and Dangerous Drugs and the Metropolitan Police Department applied for judicial authorization to intercept wire communications of members of a narcotics conspiracy who were using a telephone listed to Geneva Jenkins. ¹ The District Court granted authorization on January 24, 1970, empowering agents to intercept the 'wire communications of Alphonso H. Lee, Burnis Lee Thurmon, and other persons as may make use of the facilities hereinbefore described,' and commanding them to minimize interceptions of conversations not subject to interception under Title III.

On that same day the interception began. Officials subsequently sought and obtained authorization to intercept narcotics-related conversations conducted over two other telephone numbers, ² and later obtained an extension of the original authorization. ³ On February 24, 1970, all of the interceptions terminated, and search and arrest warrants were executed that led to the arrest of twenty-two persons and the seizure of considerable quantities of anrcotics.

Following indictment, another district judge ordered comprehensive discovery and thereafter conducted an extensive series of hearings on multiple defense motions. The court concluded that the agents conducting the interception of conversations over the Jenkins phone had failed to comply with the minimization mandate, and ordered suppression of conversations intercepted in that wiretap and all other evidence derived therefrom. The Government, after failing in its attempt to obtain reconsideration of the court's order, exercised its statutory right of appeal. 18 U.S.C. 2518(10)(b).

Minimization was but one of a number of issues urged upon the District Court during the extensive pretrial hearings. The defendants advanced individual contentions, as well as numerous common questions pertaining to the constitutionality of Title III and to the implementation of the statutory requirements in this case. Moreover, the court was at the time essentially writing on a clean slate. Few appellate decisions existed to offer guidance in the resolution of the many complex constitutional and statutory problems underlying Title III, and this court had not as yet spoken to those questions at all. James now teaches that the District Court properly rejected appellees' constitutional challenge to the provisions of Title III. United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1020 (1974). Moreover, we have examined the affidavit filed in support of the application for authorization to intercept conversations on the Jenkins phone, and we feel that the court properly rejected all challenges to its sufficiency. See id. at 1021. Finally, we concur in the court's rejection of appellees' contentions that the authorizing order insufficiently particularized the conversations that could be intercepted.

II

The Government asserts that the court erred in permitting each 'aggrieved person,' in the language of the statute, to raise a minimization objection based on the interception of conversations in which he did not participate, insisting that this enables appellees to assert the privacy interests of others in violation of long established principles of Fourth Amendment law. See generally Brown v. United States, 411 U.S. 223, 230 (1973), and cases cited therein. Pointing out that all of the conversations cited by the court involve either Geneva Jenkins or appellee Bernis Thurmon and third parties, the Government maintains that only Geneva Jenkins and appellee Thurmon have standing to suppress intercepted conversations.

The Congressional definition of 'aggrieved person' was designed 'to reflect existing law.' S.Rep.No. 90-1097, 90th Cong., 2d Sess., 91 (1968). See also Alderman v. United States, 394 U.S. 165, 175 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. King, 478 F.2d 494, 506-507 (9th Cir. 1973); United States v. Doe, 451 F.2d 466, 469 (1st Cir. 1971). Moreover, Congress understood that this would serve to limit the statutory remedy so as not to 'press the scope of the suppression rule beyond the present search and seizure law.' S.Rep.No. 90-1097, supra, at 96.

There appears to be no question that each of the appellees in this case is an 'aggrieved person' within the meaning of the statute. ⁴ As such, each is protected by the stringent safeguards of Title III, including the requirement that agents minimize interceptions of conversations that they are not authorized to intercept. Each aggrieved person is entitled to question whether the statutory minimization requirement has been satisfied and, on proving that it has not, to move to suppress a communication on the ground that 'the interception was not made in conformity with the order of authorization or approval.' 18 U.S.C. 2518(10)(a)(iii). The question presented by the Government's challenge is really whether some of the appellees can introduce evidence based on conversations in which they did not participate in order to attempt to demonstrate that the intercepted conversations to which they were a party were not, in the statutory phrase, seized 'in conformity with the order of authorization.' ⁵

Any inquiry into possible noncompliance with the minimization requirement is, by its very nature, one that calls for an examination of the totality of the monitoring agents' conduct during the duration of the authorized interception. Fragmenting the minimization inquiry in the manner suggested by the Government would force the court to adopt an unrealistically narrow view of the issue, thus making any assessment of the overall reasonableness of the agents' conduct a highly artificial exercise. The District Court properly recognized this, and rejected the Government's argument. ⁶ The court also properly recognized the necessity of assessing the totality of the agents' conduct, and indeed considered the cited conversations only as examples of their actions. See Scott, supra, 331 F.Supp. p. 2, at 247. We find no error in this regard. ⁷

Examination of the District Court's resolution of the merits discloses, however, that the court did apply an improper standard in assessing the agents' alleged noncompliance with the minimization requirement. As James and other cases make clear, any minimization determination requires an assessment of the reasonableness of the agents' efforts in light of the purpose of the wiretap and the information available to them at the time of interception. See also United States v. Bynum, 360 F.Supp. 400 (S.D.N.Y.), aff'd, 485 F.2d 490 (2d Cir. 1973), vacated on other grounds 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974); United States v. Focarile, 340 F.Supp. 1033 (D.Md.), aff'd sub nom. United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), aff'd, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

It appears that the trial court's conclusion that the agents made no attempt to minimize stemmed in large part from its conclusions that they failed to succeed. The court relied heavily upon the fact that some sixty percent of the intercepted conversations appeared to be unrelated to narcotics transactions. This, together with the fact that the agents intercepted all of the conversations conducted during this period of authorization, in the opinion of the District Court, 'strongly indicate(d) the indiscriminate use of wire surveillance that was proscribed by Katz (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576) and Berger (Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040).' Scott, supra, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209, p. 2, at 247. The court purported to find confirmation of this initial impression in its examination of certain conversations which, in its opinion, clearly should not have been intercepted.

This court's intervening opinion in James indicates that an assessment of the reasonableness of agents' attempts to minimize must be judged on a considerably more particularized basis. For example, a substantial number of the intercepted conversations that cannot be classified as narcotics-related appear to have been either very short in duration or extremely ambiguous in...