United States v. Chavez 8212 1319

• Decision Date: 13 May 1974
• Docket Number: No. 72,72
• Parties: UNITED STATES, Petitioner, v. Umberto Jose CHAVEZ et al. —1319
• Court: U.S. Supreme Court

416 U.S. 562

94 S.Ct. 1849

40 L.Ed.2d 380

UNITED STATES, Petitioner,

v Umberto Jose CHAVEZ et al.

No. 72—1319.

Argued Jan. 8, 1974.

Decided May 13, 1974.

Syllabus

Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 each application for a court order authorizing the interception of a wire or oral communication, 18 U.S.C. § 2518(1)(a), and each interception order, 18 U.S.C. § 2518(4)(d), must identify the officer authorizing the application, and the Attorney General, or an Assistant Attorney General specially designated by him, may authorize the application, 18 U.S.C. § 2516(1). The contents of intercepted communications, or evidence derived therefrom, may not be received in evidence at a trial if the disclosure of the information would be 'in violation of' Title III, 18 U.S.C. § 2515, and may be suppressed on the grounds, inter alia, that the communication was 'unlawfully intercepted,' 18 U.S.C. § 2518(10)(a)(i), or that the interception order was 'insufficient on its face,' 18 U.S.C. § 2518(10)(a)(ii). In this case the applications and orders to wiretap the telephones of respondents Chavez and Fernandez, two narcotics offense suspects, incorrectly identified an Assistant Attorney General as the official authorizing the applications, whereas with respect to Chavez it had been the Attorney General and with respect to Fernandez the Attorney General's Executive Assistant. After Chavez, Fernandez, and the other respondents were indicted, the District Court, on respondents' motions, held that the evidence secured through both wiretaps had to be suppressed for failure of the applications or orders to identify the individual who actually authorized the application, and further as to the Fernandez wiretap because neither the Attorney General nor a specially designated Assistant Attorney General authorized the application. The Court of Appeals affirmed in all respects. 478 F.2d 572. Held:

1. Because the application for the interception order on the Fernandez phone was authorized by the Attorney General's Executive Assistant, rather than by the Attorney General or any specially designated Assistant Attorney General, on whom alone § 2516(1) confers such power, evidence secured under that order was properly suppressed. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. Pp. 569—570.

2. Misidentifying the Assistant Attorney General as the official authorizing the Chavez wiretap, when the Attorney General himself actually gave the approval, was in no sense the omission of a requirement that must be satisfied if wiretapping or electronic surveillance is to be lawful under Title III, and hence does not require suppression of the wiretap evidence. United States v. Giordano, supra, distinguished. Pp. 570—580.

(a) Where it is established that responsibility for approval of the application is fixed in the Attorney General, compliance with the screening requirements of Title III is assured, and there is no justification for suppression. Pp. 571—572.

(b) The interception order was not 'insufficient on its face' within the meaning of § 2518(10)(a)(ii), since the order clearly identified 'on its face' the Assistant Attorney General as the person authorizing the application, he being a person who under § 2516(1) could properly give such approval if specially designated to do so as the order recited, notwithstanding this was subsequently shown to be incorrect. Pp. 573—574.

(c) The misidentification of the officer authorizing the wiretap application did not affect the fulfillment of any of the reviewing or approval functions required by Congress, and, by itself, does not render the interception conducted under the order 'unlawful' within the meaning of § 2518(10)(a)(i) or the disclosure of the content of the interceptions, or derivative evidence, otherwise 'in violation of' Title III within the meaning of § 2515, there being no legislative history concerning § 2518(1)(a) and (4)(d) to suggest that they were meant, by themselves, to occupy a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance. Pp. 574—580.

478 F.2d 512, affirmed in part, reversed in part, and remanded.

Sol. Gen. Robert H. Bork, for petitioner.

James F. Hewitt, San Francisco, Cal., for respondents.

Mr. Justice WHITE delivered the opinion of the Court.

This case, like United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, concerns the validity of procedures followed by the Justice Department in obtaining judicial approval to intercept wire communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211—225, 18 U.S.C. §§ 2510—2520, and the propriety of suppressing evidence gathered from court-authorized wiretaps where the statutory application procedures have not been fully satisfied. As is more fully described in Giordano, Title III limits who, among federal officials, may approve submission of a wiretap application to the appropriate district court, to the Attorney General, or an Assistant Attorney General he specially designates, 18 U.S.C. § 2516(1), and delineates the information each application must contain, upon what findings an interception order may be granted, and what the order shall specify, 18 U.S.C. §§ 2518(1), (3), (4). ¹ Within this general framework, two statutory requirements are of particular relevance to this case. Section 2518(1)(a) provides that each application for a court order authorizing or approving the interception of a wire or oral communication shall include, among other information, 'the identity of the . . . officer authorizing the application.' Similarly, § 2518(4)(d) provides that the order of authorization or approval itself shall specify, in part, 'the identity of . . . the person authorizing the appli- cation.' The specific question for adjudication here, which it was unnecessary to resolve in Giordano, is whether, when the Attorney General has in fact authorized the application to be made, but the application and the court order incorrectly identify an Assistant Attorney General as the authorizing official, evidence obtained under the order must be suppressed. We hold that Title III does not mandate suppression under these circumstances.

I

Respondents were all indicted for conspiracy to import and distribute heroin in violation of 21 U.S.C. §§ 173, 174 (1964 ed.). In addition, respondent Umberto Chavez was separately charged under 18 U.S.C. § 1952 with using and causing others to use a telephone between California and Mexico, and performing other acts, in order to facilitate unlawful narcotics activity, and respondent James Fernandez was charged under § 1952 with traveling between California and Mexico, and performing other acts, for the same purpose. Upon notification that the Government intended to introduce evidence obtained from wiretaps of Chavez' and Fernandez' phones at trial, respondents filed motions to suppress, challenging the legality of the Justice Department's application procedures leading to the issuance by the District Court of the two orders permitting the wire interceptions. Affidavits filed in opposition by the Attorney General and his Executive Assistant represented that the application submitted for the February 18, 1971, order authorizing interception of wire communications to and from the Chavez phone had been personally approved by the Attorney General, whereas the application for the February 25, 1971, order to intercept communications to and from the Fernandez phone had been approved by his Executive Assistant a a time when the Attorney General was unavailable, and pursuant to an understanding that the Executive Assistant, applying the Attorney General's standards as he understood them, could act for the Attorney General in such circumstances.

Each application to the court had recited, however, that the Attorney General, pursuant to 18 U.S.C. § 2516, had 'specially designated' the Assistant Attorney General for the Criminal Division, Will Wilson, 'to authorize (the applicant attorney) to make this application for an Order authorizing the interception of wire communications.' Moreover, appended to each application was a form letter, addressed to the attorney making the application and purportedly signed by Will Wilson, stating that the signer had reviewed the attorney's request for authorization to apply for a wiretap order pursuant to 18 U.S.C. § 2518 and had made the requisite probable-cause and other statutory determinations from the 'facts and circumstances detailed' in the request, and that 'you are hereby authorized under the power specially delegated to me in this proceeding by the Attorney General . . ., pursuant to the power conferred on him by Section 2516 . . . to make application' for a wire interception order. Correspondingly, the District Court's intercept order in each case declared that court approval was given 'pursuant to the application authorized by . . . Will Wilson, who has been specially designated in this proceeding by the Attorney General . . . John N. Mitchell, to exercise the powers conferred on the Attorney General' by § 2516.

The discrepancy between who had actually authorized the respective applications to be made, and the information transmitted to the District Court clearly indicating that Assistant Attorney General Wilson was the authorizing official, was explained as the result of a standard procedure followed within the Justice Department. While the Attorney General had apparently refrained from designating any Assistant Attorney General to exercise the authorization power under § 2516(1), form memoranda were routinely sent from his office, over his initials, to Assistant Attorney General Wilson, stating that 'with regard to your recommendation that authorization be given' to make application for a court order permitting wire interception, 'you are hereby specially designated' to exercise the power...