United States v. Giacalone, Crim. No. 77-80449.
| Decision Date | 19 August 1977 |
| Docket Number | Crim. No. 77-80449. |
| Parties | UNITED STATES of America, Plaintiff, v. Vito GIACALONE, Richard Stanley Zalmanowski, Elias Louis Koury, David Feldman and Kenneth Charles Baker, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
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Philip Van Dam, James K. Robinson, C. Stanley Hunterton, Detroit, Mich., for plaintiff.
N. C. Deday LaRene, Detroit, Mich., Richard M. Lustig, Southfield, Mich., George E. Woods, Detroit, Mich., Sanford Rosenthal, Southfield, Mich., James C. Thomas, Royal Oak, Mich., for defendants.
All of the defendants have moved to suppress conversations overheard as the result of an electronic interception device which was placed in defendant Zalmanowski's automobile. The device was planted and the conversation intercepted on the basis of the authority granted the Federal Bureau of Investigation, by an order of The Honorable Philip Pratt, a judge of this court. The order was issued on the basis of affidavits presented to him that indicated that there was probable cause to believe the the automobile was being used to conduct the gambling business under investigation in that it was used as a place to carry on conversations necessary to such a business. No attack on the sufficiency of the affidavits to establish probable cause has been made. Nor do the defendants claim any procedural or statutory irregularities in the manner in which the court order for interception was obtained.
Their motion to suppress attacks the interception on three grounds, the first of which is that the order is overly broad. This claim is based upon the fact that the order does not specify the time, place or manner of entry for purposes of installing or removing the bug. It merely states:
It is further ordered that special agents of the Federal Bureau of Investigation are authorized to surreptitiously enter the foregoing vehicle for the purpose of installing, maintaining, and removing any such oral interception devices utilized pursuant to the authority granted by this order.
The second claim is that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., does not authorize law enforcement officers to use illegal means to implant an electronic surveillance device, or, if it does so provide, violates the Fourth Amendment and is unconstitutional. A final argument is that the proceeds of the bug should be suppressed for the reason that the surveillance was not conducted in a manner intended to minimize the extent of the intrusion.
After an exhaustive discussion of the evolution of Fourth Amendment law, the District of Columbia Circuit concluded that "the failure of the order to limit time, manner, or number of entries over a 40-day period made the authorization far too sweeping," id. at 170, and ordered that the evidence derived from the bugs be suppressed. In coming to this conclusion, the court limited its holding by stating:
We hold only that the warrant in this case was defective for expressly authorizing any number and manner of entries when there had been no showing of necessity for such broad authorization. Id.
In short, it was their conclusion that the demands of the situation did not justify the broad authorization.
To determine the amount of deference that should be accorded the D. C. Circuit's opinion in United States v. Ford, it is necessary to first note the similarities and differences between the two cases. It is apparent at once that the most outstanding similarity between the two cases is the similar breadth of the authorization order involved in each case, but there are also important differences.1 Perhaps the most significant difference is the object of the intrusion in each case: Ford involved a business establishment, while this case involves an automobile. Although this Court is well aware of the fact that "the word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears," Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971), it also realizes that the fact that an automobile is the target of an intrusion requires a consideration of factors not involved when the target is a stationary object. It is also true that an automobile has a lesser privacy interest than a business establishment, and whatever privacy an automobile may afford will be obliterated by the advent of a single bug.
The death knell for the evidence derived from the authorization order in Ford was the order's failure to limit time, manner, and number of entries over an extended period of time; in the case of an automobile, it would be impractical to include the first two of those limitations. An automobile may be moved at any time, and its location is likely to be the critical factor in determining when and how to enter the vehicle. The mere fact that a car is involved, therefore, would make it unreasonable to require a judge or magistrate to specify the time or manner of entry in an authorization order.2 The result would be more likely to result in a scene out of a keystone kops comedy, with officers scurrying to secure a warrant only to find that the automobile has been moved and having then to go through endless iterations of the same activities until they are finally fortunate enough to be able to execute the order, than it is to further the interest of society in safeguarding both Fourth Amendment rights and the safety of the public and law enforcement officers. This leaves the question of whether the issuing judge's failure to limit the number of entries into the automobile other than by specifying that entries could be made only if necessary for the purpose of installing, maintaining or removing the interception devices utilized necessitates a finding that the order was overbroad.
To determine whether a failure to limit an authorization order in such a manner as to allow no more than one entry per order should be considered fatal to the order's validity, a court must approach the problem with the realization "that the Fourth Amendment's commands . . . are practical and not abstract." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). An authorization order, no less than an affidavit for a search warrant, must be viewed in a commonsense and realistic fashion. Id. A commonsense approach requires a court to consider: (1) what the order in reality authorizes; (2) to what extent a more narrowly defined order would better protect the Fourth Amendment interests involved; and (3) whether a reasonableness requirement which allowed the victim of an intrusion to challenge its reasonableness after the fact would not as effectively safeguard the Fourth Amendment interests involved. An evaluation of these three factors will enable this Court to determine whether the specific situation which confronted the issuing judge provided the "necessity for such broad authorization," Ford, 180 U.S.App. D.C. at 25, 553 F.2d at 170, as was here granted.
When the language of the order is closely examined, it at once becomes clear that the authority granted was not very broad. The FBI was authorized to enter the vehicle surreptitiously, but only for three specific purposes — installing, maintaining, and removing the bug. Assuming that it is permissible to authorize law enforcement officers to enter a constitutionally protected area for the purposes of installing electronic surveillance devices, see discussion, infra, it is clear that the authorization order could authorize the initial intrusion for the purpose of installing the bug. The question then becomes whether it would have been reasonable to have required that the FBI secure an additional authorization for entry any time the bug malfunctioned and/or to remove the bug at the end of the surveillance. If this question is answered in the affirmative, it will then become necessary to determine whether such a requirement would advance any Fourth Amendment interest.
In the case of an additional entry made for the purpose of maintaining the previously installed device, it appears to this Court that a requirement that the FBI seek an additional entry authorization would not be reasonable. First, as the affidavit in support of the application for the authorization order makes clear, Mr. Zalmanowski's car was known to be the location of a continuing series of discussions regarding the operation of the gambling conspiracy under investigation. It was critical to the success of the investigation and to its rapid conclusion that the FBI be able to monitor these conversations, and a long delay in the repair of a malfunctioning device could seriously impede or delay the investigation. A long delay could occur if the agents were to miss an opportunity to repair the bug due to a need to require an additional entry authorization only to have the automobile then become inaccessible due to location and/or use for a significant period of time.
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