United States v. Focarile

• Citation: 340 F. Supp. 1033
• Decision Date: 22 February 1972
• Docket Number: Crim. No. 70-0483-M,70-0486-M and 70-0487-M.
• Parties: UNITED STATES of America v. Michael FOCARILE et al. UNITED STATES of America v. Dominic Nicholas GIORDANO. UNITED STATES of America v. Dominic Nicholas GIORDANO and Michael Focarile.
• Court: U.S. District Court — District of Maryland

340 F. Supp. 1033

UNITED STATES of America v. Michael FOCARILE et al.

UNITED STATES of America v. Dominic Nicholas GIORDANO.

UNITED STATES of America v. Dominic Nicholas GIORDANO and Michael Focarile.

Crim. Nos. 70-0483-M, 70-0486-M and 70-0487-M.

United States District Court, D. Maryland.

February 22, 1972.

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George Beall, U. S. Atty., and Francis S. Brocato, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Aaron R. Schacher, Brooklyn, N. Y., for defendant Focarile.

H. Russell Smouse, Baltimore, Md., for defendant Giordano.

Frank V. Seglinski, Baltimore, Md., for defendant D'Anna.

Howard L. Cardin, Baltimore, Md., for defendants Wallace, Baldwin, and Silverstein.

Arthur G. Murphy, Sr., Baltimore, Md., for defendants Pettiford and Harris.

Jerome Blum, Baltimore, Md., for defendant Blackwell.

John A. Shorter, Jr., Washington, D. C., for defendant Williams.

Stephen H. Sachs, Baltimore, Md., for defendant Pope.

Donald Daneman, Baltimore, Md., for defendant Dorsey.

Alan H. Murrell and Phillip M. Sutley, Baltimore, Md., for defendant Davis.

Leonard S. Freedman and Stanley J. Shapiro, Baltimore, Md., for defendant Jones.

JAMES R. MILLER, Jr., District Judge.

OPINION

Motions to suppress the contents of intercepted telephone communications and evidence derived therefrom have been filed in three related cases. The telephone involved in all the motions was located in the apartment of Dominic Nicholas Giordano in Baltimore. For the purpose of ruling on the motions to suppress, the three cases shall be treated as one.

The wiretap involved was conducted by agents of the Bureau of Narcotics and Dangerous Drugs (BNDD), pursuant to an order issued on October 16, 1970, and an extension order issued on November 6, 1970, both by Chief Judge Northrop of this court (Misc. No. 739-N). On October 8, 1970, Chief Judge Northrop had signed an order (Misc. No. 737-N) authorizing agents of the BNDD to utilize a device euphemistically known as a "pen register" to record the telephone numbers called from a telephone subscribed by a person subsequently identified as Dominic Nicholas Giordano. The pen register order was also extended by subsequent orders of Chief Judge Northrop, dated October 22, 1970, and November 6, 1970.

The motions raise serious questions relating to the constitutionality, scope, and meaning of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Pub.L. 90-351, Title III, § 802, June 19, 1968, 82 Stat. 112-223; 18 U.S. C. §§ 2510-2520. Due primarily to a lack of precedent in this circuit on most of the points raised in the motions, the court attempted to act cautiously in guiding the hearings which were conducted at great length. Both the defendants and the government were allowed great latitude in their attempts to sustain their respective factual and legal positions. As will become apparent from this opinion, this court believes that future hearings on motions to suppress filed in other wiretap cases can be substantially shortened and should be conducted generally in the same manner as hearings on search warrants and similar questions.

In the course of this opinion the points raised by the motions will be discussed. The factual background necessary for the resolution of the respective issues presented will be set forth in the respective sections of this opinion pertaining to the pertinent issue.

I The Constitutionality of Title III

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., is an attempt by Congress to "... prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officials engaged in the investigation of specified types of major crimes after obtaining a court order ..." and by certain other strictly limited classes of persons. 1968 U.S. Code Cong. & Admin.News, p. 2113. In the legislation Congress reaffirmed the Fourth Amendment requirement of prior judicial authorization for electronic surveillance and attempted to comply with the standards 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). Ibid. The defendants contend that the statute violates the prohibitions of the Fourth Amendment against unreasonable search and seizure.

It is elementary constitutional law that the Fourth Amendment does not prohibit all searches and seizures but only those that are unreasonable. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Historically, the amendment was conceived with the idea of protecting the individual against the "general warrant" and safeguarding his privacy and security against arbitrary invasions by governmental officials. Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The determination of the constitutionality of Title III — and particularly 18 U.S.C. § 2518 — therefore rests on the question whether it "is so broad as to result in the authorization for a general warrant permitting an unreasonable search and seizure in violation of the 4th Amendment." United States v. Scott, 331 F.Supp. 233 (D.D.C.1971).

The standards for testing the constitutionality of a statute authorizing electronic surveillance have been promulgated by the United States Supreme Court in Berger v. New York, supra; Katz v. United States, supra; and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). Although the Supreme Court has not as yet ruled specifically on the constitutionality of Title III, this issue has been raised before other federal tribunals. Thus far, Title III has successfully run the constitutional gauntlet imposed by Berger, Katz, and Osborn. United States v. Cox, 449 F.2d 679 (10th Cir. 1971); United States v. King, 335 F.Supp. 523 (S.D. Cal.1971); United States v. Perillo, 333 F.Supp. 914 (D.Del.1971); United States v. Leta, 332 F.Supp. 1357 (M.D. Pa.1971); United States v. Scott, supra; United States v. Cantor, 328 F. Supp. 561 (E.D.Pa.1971); United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla. 1971); United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970), reversed on other grounds sub nom. United States v. Robinson, 40 L.W. 2454 (5th Cir., Jan. 12, 1972).

Judge Nielsen in United States v. King, supra, at p. 532, correctly and succinctly characterized the strict limitations upon electronic searches imposed by Title III when he said:

"... It is not in dispute that general, exploratory electronic searches are not permissible under the Fourth Amendment, but Section 2518 appears to have been drawn with the specific purpose of eliminating such a possibility in the narrowly circumscribed system it creates. Under Section 2518 a wiretap may be effected only when a federal judge determines there is probable cause to believe a specific offense has been, is being, or will be committed, and that telephonic communications will reveal pertinent information. There are other precautionary measures; among the most important: the communications to be intercepted must be specifically described; normal investigative procedures must be shown to be inadequate or inappropriate; the duration of the wiretap must be strictly limited; efforts must be made to minimize the interceptions which do not relate to the subject matter of the investigation; and frequent progress reports must be made to the authorizing judge. ..."

This court concurs with the other courts cited above which have found that Title III, and particularly section 2518, complies with the constitutional requirements of the Fourth Amendment. The reasons for this conclusion are set forth at length in these cases.

II The Pen Register

The order of Chief Judge Northrop of October 8, 1970, in Misc. No. 737-N, authorized BNDD agents to "attach a device which will register the telephone numbers called from the telephone subscribed to by Nicholas Giordina and carrying number 685-0211." The authorization was to terminate fourteen (14) days from the date of the order and progress reports were to be made to the court on the 5th and 10th days following the order. On October 22, 1970, and on November 6, 1970, extensions were granted for the continued use of a telephone registering device on the telephone subscribed to by Dominic Nicholas Giordano (it had been learned by BNDD in the interim that the subscriber's real name was "Giordano" and not "Giordina") and carrying the new number 685-2332. Termination dates and dates for progress reports were also established for these extensions.

Defendants have attacked these orders for the use of a pen register¹ device on two fronts: (1) the requirements for the interception of oral and wire communications as set forth in Title III were not met and (2) there was no sufficient showing of probable cause to warrant the judge granting the "pen register" order.

The determination of the validity of the first contention of the defendants requires the court to make the threshold determination as to whether the recording of numbers with a pen register or similar device is an "interception" within the meaning of 18 U.S.C. § 2510(4), thus making compliance with the procedures set forth in §§ 2516 and 2518 a prerequisite to the installation and use of such devices. Although there are a number of cases² which have held that the use of a pen register to record calls is an interception of a communication within the meaning of the Communications Act of 1934 (47 U.S.C. § 605), the predecessor to Title III, this court is of the opinion that the use of a pen register or similar device is not an "interception" within the meaning of section 2510(4) of Title III therefore making compliance with Title III unnecessary. Accord United States v. King, supra; United States v. Vega, 52 F.R.D. 503 (E.D.N.Y.1971); United States v. Escandar, supra, reversed on other grounds sub nom. ...