United States v. Escandar

• Decision Date: 03 November 1970
• Docket Number: No. 70-333-Cr.,70-333-Cr.
• Parties: UNITED STATES of America v. Mario ESCANDAR et al.
• Court: U.S. District Court — Southern District of Florida

319 F. Supp. 295

UNITED STATES of America
v.
Mario ESCANDAR et al.

No. 70-333-Cr.

United States District Court, S. D. Florida.

November 3, 1970.

319 F. Supp. 296

Henry Carr, James J. Hogan, E. A. Kaufman, A. Carricarte and Frank Ragano, Miami, Fla., Ashton & Stitt, Pittsburgh, Pa., for defendants.

Robert W. Rust, U. S. Atty., Miami, Fla., for the government.

MEMORANDUM OPINION AND ORDER

MEHRTENS, District Judge.

Defendants entered pleas of nolo contendere to various charges herein, reserving the right to move to suppress evidence seized as a result of interceptions made on the home telephone of defendant Mario Escandar (379-2042) and on the pay telephone located in the

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lobby of the apartment building where Escandar resided (374-8809)

In accordance with an order of the United States District Court for the Southern District of Florida dated May 21, 1970, an interception of wire communications was authorized on the telephone number 379-2042 for a period not to exceed twenty (20) days from the date of the order. On June 10, 1970, an order was entered authorizing an extension of this interception for a period not to exceed fifteen (15) days. Both of these orders also required the filing of reports with the court every five days throughout the duration of the interception. The interception of the wire communications over 379-2042 was terminated on June 21, 1970.

Pursuant to an order of the United States District Court for the Southern District of Florida dated June 13, 1970, an interception of wire communications was authorized on the pay telephone number 374-8809 "only when surveillance by Special Agents of the Bureau of Narcotics and Dangerous Drugs indicate that Mario Escandar is in the apartment building described above. Interception of wire communications from the above-described public telephone facility shall only be conducted when it is determined by voice recognition by Special Agents of the Bureau of Narcotics and Dangerous Drugs that Mario Escandar is using the above-described public telephone." This authorized interception was for a period of time not to exceed twenty (20) days. This order further required the filing of interim reports. The interception of the wire communications over 374-8809 was terminated on June 20, 1970.

All of the above orders further required that the authorized interceptions be terminated upon the attainment of its authorized objectives. In each instance there was a finding of probable cause to believe that Mario Escandar, Juan Restoy, and others yet unknown had committed or were committing offenses enumerated in 18 U.S.C. § 2516, 21 U.S.C. § 174, 26 U.S.C. § 4704(a), 26 U.S.C. § 4705(a), 18 U.S.C. § 371. Finally, the Court, upon a finding of probable cause, authorized the use of a pen register on 374-8809 and a touch tone decoder on 379-2042.

On September 2 and 3, 1970, a hearing was held by this Court to determine the validity of defendants' motions to suppress evidence seized as a result of the above-authorized interceptions. Defendants have made three basic contentions. First, they argue that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 82 Stat. 211-225, Ch. 119 of Title 18, U.S.C. (hereinafter referred to as Title III), is unconstitutional on its face in that it violates the First, Fourth and Fifth Amendments to the Constitution. Second, they contend that even assuming the statute satisfies the Constitution, the statute's provisions were not complied with in this case. Finally, defendants maintain that there was no probable cause on which to base orders of interceptions of wire communications on the telephone numbers 379-2042 and 374-8809. For the reasons which appear below the Court finds that defendants' arguments cannot be sustained and their motions to suppress must therefore be denied.

A. The Constitutionality of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

The Constitutionality of Title III depends primarily on whether it complies with the requirements of the Fourth Amendment to the United States Constitution and the Supreme Court's pronouncements in Berger v. New York, L.Ed.2d 1040, Katz v. United States, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 1967, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 1967 and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 1966. The Fourth Amendment requires that probable cause be established before an impartial and independent judicial officer before an interception

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may be properly authorized.¹ Where communications are the subject of seizure, the "type of conversation sought" must be described with particularity in the supporting affidavit and the authorizing warrant.² The interception that follows any such judicial determination must be "limited, both in scope and in duration, to the specific purpose of establishing the contents of the * * * unlawful telephonic communications."³ It must be terminated once the conversation sought is seized.⁴ Because "the usefulness of electronic surveillance depends on lack of notice to the suspect"⁵ and because it is well recognized that "officers need not announce their purpose before conducting an otherwise authorized search if such announcement would provoke * * * destruction of critical evidence," prior or contemporaneous notice of interception of communications by court authorization is not required.⁶ There must, however, be some "showing of exigency, in order to avoid notice" in the supporting affidavit.⁷ Finally, the communications seized must be under court control.⁸

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was an attempt among other things to devise a limited system of wire surveillance and electronic eavesdropping for law enforcement use that fulfilled the demands of the Constitution. It is this Court's opinion that Title III fully satisfies the demands of the Fourth Amendment and cases thereunder set out above.

For all normal investigative interceptions a rigorous procedure of antecedent justification to the court is a necessary and indispensable precondition of a valid statutory surveillance.⁹ The court whose authorization is sought must be presented a lengthy and complete written application, under oath, which sets out in the first instance facts sufficient to show probable cause. Section 2518(2) empowers the court to whom the application is made to require, if it desires, additional evidence in support of the application prior to the determination by the court of the application's satisfaction of the requirements of probable cause. Necessary to a constitutionally circumscribed interception of communication is the particularized description of the "offense that has been or is being committed" and "the type of conversation" sought in the authorizing order.¹⁰

Section 2518(1) (b) clearly states that the warrant application must contain a "full and complete statement of the facts and circumstances relied upon by the applicant", including:

(i) details as to the particular offense that has been, is being, or is about to be committed,

(ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted,

(iii) a particular description of the type of communications sought to be intercepted,

(iv) the identity of the person, if known, committing the offense whose communications are to be intercepted.

Section 2518(3) further requires that before any authorization of interception can be issued, the court must find the

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allegations of particularized fact supported by probable cause, including findings that

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b) there is probable cause for the belief that particular communications concerning that offense will be obtained through such interception;

* * * * * *

and

(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

Finally, Section 2518(4) requires that each such particularized finding be embodied in the warrant so as to circumscribe the scope of the resulting search and seizure. Clearly, therefore, defendants' objections that Title III does not provide for the traditional requirements of adequate particularity as a precondition to a valid search under the Fourth Amendment are not justified. Significantly, the New York statute condemned by the Supreme Court in Berger was totally lacking in fulfilling the requirements of particularization either in the warrant application or in the issued warrant. Title III was obviously intended to remedy this flaw.

If the court determines the application sufficient and authorizes surveillance in conformance with statutory requirements, it may still retain control of subsequent events. Section 2518(6) allows the authorizing court to require progress reports at any interval it deems appropriate. Upon conclusion of the interception the court receives the fruits of the search which are to be sealed at the court's direction.¹¹ The court also has the duty of determining on whom an inventory shall be served and under what conditions.¹² Therefore, judicial control, which is so necessary to any valid scheme under the Fourth Amendment, is amply provided for in Title III.

Defendants further contend that Title III runs afoul of the restrictions on the length of surveillance discussed by the Supreme Court in Berger. The Court in Berger clearly disapproved of the New York Statute which allowed electronic surveillance for a period of two months without continuing judicial...