United States v. Curreri

Decision Date03 December 1974
Docket NumberCrim. 73-0463-M.
Citation388 F. Supp. 607
PartiesUNITED STATES of America v. Carmelo Frank CURRERI, Jr., et al.
CourtU.S. District Court — District of Maryland

COPYRIGHT MATERIAL OMITTED

George Beall, U. S. Atty., and William A. Pope, David M. Soutar and Robert B. Schulman, Sp. Attys., U. S. Dept. of Justice, Baltimore, Md., for plaintiff.

William Greenfeld, Baltimore, Md., for defendants Carmelo Frank Curreri, Jr., and Samuel Joseph Curreri.

Arnold M. Weiner, M. Albert Figinski and Peter Max Zimmerman, Melnicove, Greenberg & Kaufman, P.A., Baltimore, Md., for defendant Milton Baumel.

Russell J. White and Robert N. Dugan, Towson, Md., for defendant Alvin J. Hollander.

Jerome Blum, Baltimore, Md., for defendant John David Matthews.

James R. White, Baltimore, Md., for defendant Carmelo Frank Curreri, Jr.

H. Russell Smouse and Walter E. Black, Jr., Baltimore, Md., for defendant Francis X. Alagna.

Phillip M. Sutley, Baltimore, Md., for defendants Salvatore Sebastian D'Anna, Melvin K. Smith, Carlo Samuel Bucci and Acme News Services, Inc.

JAMES R. MILLER, Jr., District Judge.

OPINION AND ORDER

Pursuant to 18 U.S.C. § 2518(10)(a), defendants have moved to suppress all evidence obtained against each of them as a result of electronic interception or eavesdropping, under the authority of an order dated January 31, 1973, signed by Judge Kenneth C. Proctor of the Circuit Court for Baltimore County. This order purported to allow the interception of wire or oral communications transmitted or received over telephone Nos. 866-1966 and 866-5491.

Four reasons are assigned for the proposed suppression. They are as follows:

"1. The state authorized wiretap in this case contravened the prohibition of the Fourth Amendment to the Constitution of the United States against unreasonable searches and seizures and did not satisfy federal statutory standards, particularly Section 2516(2) of Title 18, U.S.C., which control electronic surveillance of telephone conversations.
"2. If the Maryland statutes authorizing wiretaps are valid, their provisions `more restrictive' than federal law compel suppression of the intercepted communications as evidence in these proceedings because the prosecution here is brought in a forum and for violations not contemplated by Maryland law.
"3. The application and affidavit filed to obtain the Order for electronic surveillance in this case fail to establish probable cause as required by the Fourth Amendment to the Constitution of the United States and by 18 U.S.C. § 2518(1) and (3).
"4. The application, affidavit and order for electronic surveillance in this case each failed to contain that full and complete statement, required by 18 U.S.C. § 218 2518(1)(c) and (3)(c), demonstrating that other investigative techniques had been tried and failed and why such other procedures reasonably appeared to be dangerous or unlikely to succeed if tried. The conclusory statement in this regard by the State's Attorney violates Maryland law."
I.
a.

The defendants first challenge the validity of the statutory basis for the wiretap. The wiretap itself was conducted by Baltimore County police officers between February 3, 1973, and February 7, 1973. On February 7, 1973, Judge Proctor ordered that the contents of the intercepted wire communications be disclosed to investigative and law enforcement officers of the United States for use in any proceedings held under the authority of the United States.

Judge Proctor's order of January 31, 1973, originally authorizing the wiretap, recites that said power is authorized by "the provisions of Article 27, Section 125A, Article 35, Section 92 thru 99, of the Annotated Code of Maryland, 1957 Edition, as amended and revised, pursuant further to the Omnibus Crime Control and Safe Streets Act of 1968, and further pursuant to the Fourth Amendment to the Constitution of the United States of America. . . ."

While defendants do not concede the constitutionality of the 1968 Act, they do admit that challenges to the Act "have not been generally successful." The Fourth Circuit has unequivocably upheld the constitutionality of Title III of the 1968 Act and, more specifically, 18 U.S.C. §§ 2515-2520. United States v. Bobo, 477 F.2d 974, 981-982 (4th Cir. 1973). This court has held likewise, United States v. Focarile, 340 F.Supp. 1033, 1037-1038 (D.Md.1972). See also United States v. Chavez, 416 U.S. 562, 94 S.C. 1849, 40 L.Ed.2d 380 (1974).

The thrust of this contention by defendants is that in the absence of a state statutory authority for electronic interception which itself sets forth the minimum standards for compliance with the Fourth Amendment, the 1968 Act allows no state wiretapping. In support of this contention, defendants rely on 18 U.S.C. § 2516(2), which provides:

"(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses." (Emphasis supplied).

Defendants urge that the "clear language" of this subsection makes a state statute which (a) authorizes interception, (b) sets standards for obtaining and conducting interception, and (c) designates offenses subject to interception, a prerequisite to a valid state-conducted wiretap. Defendants further point out that the Maryland statutes which purport to authorize wiretaps (Md.Ann.Code art. 27, §§ 125A-125D and art. 35, §§ 92-99)1 were enacted prior to the decision of 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), in which the Supreme Court enunciated its view of what procedural safeguards are required before wiretap evidence may be admitted in a criminal trial.

Defendants contend that the Maryland statutes authorizing wiretaps do not meet the constitutional standards set by Berger and Katz and incorporated in Title III. They allege that these statutes are deficient in numerous respects, including, inter alia, the failure to set forth "minimization standards" the lack of a requirement of post-recording notice to persons in whose names the tapped telephone lines are listed, and the absence of a requirement that the application or order particularize the conversations to be recorded or identify the person or persons, if known, whose communications are to be intercepted.

The Government does not argue that the Maryland wiretap statutes, standing alone, comply with all the constitutional requirements laid down in Berger and Katz. Rather, the Government relies on the view of the Maryland Court of Appeals in State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972), in which the court stated:

"Having determined that Title III is not violative of the Fourth Amendment, it is now necessary to evaluate whether it can be implemented in Maryland. It is abundantly clear that the federal act is not self-executing as applied to the states. Under § 2516(2), the principal prosecuting attorney of any state or political subdivision, if `authorized by a statute of that State', may apply `to a State court judge of competent jurisdiction for an order authorizing' the interception of wire or oral communications. (Emphasis added.) That section also states that the issuing judge may grant the order `in conformity with section 2518 of this chapter and with the applicable State statute . . .." (Emphasis added.) However, while Title III requires an appropriate state act before it can be effectuated, under no circumstances is that law enforceable if it is less restrictive than the federal statute so that it grants the governing power more rights at the expense of its citizens. In this vein § 2515 mandates that evidence obtained by the interception of wire or oral communications, in violation of the Crime Bill, cannot be received in evidence in any court, federal or state. Of course, a state act which is more closely circumscribed than the federal law in granting eavesdrop authority is certainly permissible. Robert v. State, 220 Md. 159, 168-169, 151 A.2d 737 (1959).
"The Maryland statutes concerned with the interception of wire or oral communications are Code (1957, 1971 Repl.Vol.), Art. 27, §§ 125A-D, and Code (1957, 1965 Repl.Vol.), Art. 35 §§ 92-99. They provide that upon application from the proper state official, a judge of the circuit court of any county or of the Supreme Bench of Baltimore City may issue an order allowing the interception. (In both articles the State's Attorney is competent to apply but while Art. 35, § 94(a) permits such a petition from the Attorney General, a similar stipulation is not included in Art. 27, § 125A(b)). These provisions are `applicable State statutes' as envisioned under § 2516(2) and whether each of their terms relating to the application or grant of an order is constitutional vel non is of no consequence. Once the hurdle of finding an applicable Maryland law authorizing interception is overcome, compliance must be had with
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