United States v. Bleau

• Decision Date: 11 July 1973
• Docket Number: Crim. No. 72-0434.
• Citation: 363 F. Supp. 438
• Parties: UNITED STATES of America v. Patricia Ann BLEAU et al.
• Court: U.S. District Court — District of Maryland

363 F. Supp. 438

UNITED STATES of America v. Patricia Ann BLEAU et al.

Crim. No. 72-0434.

United States District Court, D. Maryland.

July 11, 1973.

George Beall, U. S. Atty., D. Md., David E. Holt, Jr., Sp. Atty., U. S. Dept. of Justice, Baltimore Strike Force, Baltimore, Md., for plaintiff.

Robert Cahill, Arnold Weiner, and M. Albert Figinski, Baltimore, Md., for defendant Calman Bernstein.

MEMORANDUM AND ORDER

BLAIR, District Judge.

Calman Bernstein, a defendant in this prosecution under 18 U.S.C. § 1955 for alleged gambling activities, has moved for the suppression of wiretap evidence obtained under an authorization order entered on April 14, 1972. Bernstein claims that, at the time the April 14 order was obtained, the government knew of his alleged involvement in the gambling activities and use of the communication facilities to be monitored and, for this reason, his name was required to be listed in the application seeking and the order authorizing the wiretap. Since it was not, he argues, suppression of all evidence against him secured through the use of the April 14 wiretap must occur.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (hereafter Title III), 18 U.S.C. § 2510 et seq., imposes a qualified requirement that a party whose conversations are to be intercepted be named in the application and order. Section 2518(1)(b)(iv) requires a listing in the wiretap application of "the identity of the person, if known, committing the offense and whose communications are to be intercepted." Section 2518(4)(a) similarly requires that the authorization order list "the identity of the person, if known, whose communications are to be intercepted." These provisions, among others, are designed to insure that the authorizing judge's order — i. e., the warrant — will be adequately particularized according to Fourth Amendment standards as enunciated in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L. Ed.2d 1040 (1967) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed.2d 576 (1967). See, Senate Report No. 1097, 1968 U.S.Code Congressional and Administrative News, 2112, 2189-90. They are also keyed to Title III's notice provisions — an integral part of the statute — in that those named in the order receive an inventory as a matter of right while others whose communications are intercepted in the course of the wiretap receive an inventory only in the discretion of the authorizing judge. 18 U.S.C. § 2518(8)(d).

The listing in the warrant of the name of the owner of the premises to be searched or the things to be seized is not specifically required by the Fourth Amendment, which provides that "no Warrants shall issue, but upon . . . particularly describing the place to be searched, and the person or things to be seized." Hanger v. United States, 398 F.2d 91, 99 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); Miller v. Sigler, 353 F.2d 424, 428 (8th Cir. 1965), cert. denied, 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966); Dixon v. United States, 211 F.2d 547, 549 (5th Cir. 1954); United States v. McClard, 333 F.Supp. 158, 163 (E.D.Ark.1971), aff'd, 462 F.2d 488 (8th Cir. 1972); United States v. Ortiz, 311 F.Supp. 880, 883 (D.C.Colo.1970), aff'd, 445 F.2d 1100 (10th Cir. 1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971). All that need be particularly described for Fourth Amendment compliance is the place to be searched and the thing or person to be seized.¹See Berger v. New York, 388 U.S. 41, 58-59, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), where failure to particularize in this respect invalidated the New York statute despite the statute's requirement that the speaker be named whose conversations were to be intercepted. In regard to telephone communications it thus appears that under the Fourth Amendment it is possible to seize particularly described conversations from a particularly described place without naming the speaker in the warrant. United States v. Fiorella, 468 F.2d 688, 691 (2d Cir. 1972); United States v. King, 335 F. Supp. 523, 538-540 (S.D.Cal.1971); United States v. Perillo, 333 F.Supp. 914, 921 (D.Del.1971); United States v. Sklaroff, 323 F.Supp. 296, 324-325 (S. D.Fla.1971). Of course, naming the speaker further particularizes the description of the conversations to be seized and would reinforce an otherwise detailed description of the conversation. See, e. g., Katz v. United States, 389 U. S. 347, 354, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To this end, in the effort to particularize to the greatest degree possible, Title III requires that the speaker be identified, but only upon a condition of reasonableness that the speaker be named "if known." On the other hand, if only by implication, if the speaker's identity is now known, conversations of the type and from the place particularly described can still be seized. Because the Fourth Amendment does not demand an owner's name be in a search warrant otherwise properly descriptive, a failure to name an individual could only be violative of Title III's requirements and not those of the Fourth Amendment. If suppression is proper, it would be the result of a failure to comply with Title III rather than the Fourth Amendment.

Since Title III requires the naming only of those who are known, it must be determined who fits into the class of knowns, and who, in the unknowns. In United States v. Kahn, 471 F.2d 191 (7th Cir. 1972), cert. granted, 411 U.S. 980, 93 S.Ct. 2275, 36 L.Ed.2d 956 (1973), a decision defendant pillars his position upon, the Seventh Circuit tightly contracted the category of "unknowns." In that case, the government, under an order authorizing the tapping of gambling conversations between Irving Kahn and "others as yet unknown", intercepted gambling conversations between Irving Kahn and his wife, Minnie, whom the government did not know until that time was involved in her husband's illegal activities. Subsequently, two gambling calls between Minnie and known gambling figures were intercepted. The Seventh Circuit affirmed the suppression of Minnie Kahn's conversations on the ground that she did not fit into the class of persons "as yet unknown" and, not being named in the order, there was no authority to intercept her communications. The court stated that when the government can discover by a prudent investigation the names of all persons involved and whose conversations will be tapped, those persons must be named in the order if the government wants to tap their conversations. The court looked at the affidavit in the file in the wiretap proceeding and decided the government could have pursued other conventional avenues of investigation to determine Minnie Kahn's complicity in her husband's activities before submitting the wiretap application, but had not done so. The court noted that the government must demonstrate that other investigative techniques to discover an unnamed person's identity had been tried and failed and that the government could not rely on the conclusionary statement in the application that "normal investigative methods reasonably appear to be unlikely to succeed and are too dangerous to be used" as an excuse or justification for not having known of Minnie Kahn's gambling activities and obtaining her name in the authorization order.

Judge Stevens dissented. He reasoned that Congress intended to permit conversations of persons unknown to the government at the time of the application for the wiretap order to be intercepted and that the order in this case so provided. Since nothing in the record indicated the government had knowledge of Minnie Kahn's involvement, she properly fit in the class of "unknowns." He felt the adequacy of the government's investigation was irrelevant to the requirement of listing names and pertained only to Section 2518(3)(c) which required the authorizing judge to make a finding that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Since the authorizing judge had, in Judge Stevens' view, justifiably found that other means of investigation were inadequate or too dangerous, the government had to investigate by conventional means no further to intercept the conversations of people like Minnie Kahn, not known to the government at the time of the application.

Having considered both positions expressed in Kahn, this court is persuaded that Judge Stevens is correct. Sections 2518(1)(c) and 2518(3)(c), and not Sections 2518(1)(b)(4) and 2518(4)(a), impose the exhaustion of conventional investigative techniques requirement on the government. These sections do not require the government to try and fail at every conceivable other avenue of investigation before a Title III wiretap can be obtained. United States v. Lanza, 356 F.Supp. 27, 30 (M. D.Fla.1973). They permit a Title III interception if the authorizing judge finds other investigative techniques are either too dangerous to try or are unlikely to succeed if tried. See, e. g., United States v. Bobo, 477 F.2d 974 et seq. (4th Cir. 1973), where the Fourth Circuit approved the authorization of a Title III wiretap upon the conclusion by the authorizing judge "that normal investigative procedures reasonably appeared unlikely to succeed." If the authorizing judge finds one or the other, he can then...