United States v. Kahn 8212 1328

Decision Date20 February 1974
Docket NumberNo. 72,72
Citation94 S.Ct. 977,415 U.S. 143,39 L.Ed.2d 225
PartiesUNITED STATES, Petitioner, v. Irving KAHN and Minnie Kahn. —1328
CourtU.S. Supreme Court
Syllabus

On the Government's application for an order authorizing a wiretap interception of the home telephones of respondent Irving Kahn, a suspected bookmaker, pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the District Judge entered an order pursuant to 18 U.S.C. § 2518, which described the telephones to be tapped and found probable cause to believe that Mr. Kahn and 'others as yet unknown' were using the telephones to conduct an illegal gambling business, and authorized FBI agents to intercept wire communications 'of' Mr. Kahn and 'others as yet unknown.' The agents intercepted incriminating calls made by Mr. Kahn in Arizona to respondent Mrs. Kahn at their home in Chicago, and also incriminating calls made by Mrs. Kahn to 'a known gambling figure.' The respondents were subsequently indicted for violating the Travel Act. Upon being notified of the Government's intention to introduce the intercepted conversations at trial, respondents moved to suppress them. The District Court granted the motion. The Court of Appeals affirmed, construing the requirements of 18 U.S.C. §§ 2518(1)(b)(iv) and 2518(4)(a) that the person whose communications are to be intercepted is to be identified if known, as excluding from the term 'others as yet unknown' any persons who careful Government investigation would disclose were probably using the telephones for illegal activities, and that since the Government had not shown that further investigation of Mr. Kahn's activities would not have implicated his wife in the gambling business, she was not a 'person as yet unknown' within the purview of the wiretap order. Held:

1. Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that that individual is 'committing the offense' for which the wiretap is sought, and since it is undisputed here that the Government had no reason to suspect Mrs. Kahn of complicity in the gambling business before the wiretapping began, it follows that under the statute she was among the class of persons 'as yet unknown' covered by the wiretap order. Pp. 151 155.

2. Neither the language of the wiretap order nor that of Title III requires the suppression of legally intercepted conversations to which Mr. Kahn was not himself a party. Pp. 155 158.

7 Cir., 471 F.2d 191, reversed and remanded.

Andrew L. Frey, Washington, D.C., for petitioner.

Anna R. Lavin, Chicago, Ill., for respondents.

Mr. Justice STEWART delivered the opinion of the Court.

On March 20, 1970, an attorney from the United States Department of Justice submitted an application for an order authorizing a wiretap interception pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510—2520, to Judge William J. Campbell of the United States District Court for the Northern District of Illinois. The affidavit accompanying the application contained information indicating that respondent Irving Kahn was a bookmaker who operated from his residence and used two home telephones to conduct his business.1 The affidavit also noted that the Government's informants had stated that they would refuse to testify against Kahn, that telephone company records alone would be insufficient to support a bookmaking conviction, and that physical surveillance or normal search-and-seizure techniques would be unlikely to produce useful evidence. The application therefore concluded that 'normal investigative procedures reasonably appear to be unlikely to succeed,' and asked for authorization to intercept wire communications of Irving Kahn and 'others as yet unknown' over two named telephone lines, in order that information concerning the gambling offenses might be obtained.

Judge Campbell entered an order, pursuant to 18 U.S.C. § 2518, approving the application.2 He specifi- cally found that there was probable cause to believe that Irving Kahn and 'others as yet unknown' were using the two telephones to conduct an illegal gambling business, and that normal investigative techniques were unlikely to succeed in providing federal officials with sufficient evidence to successfully prosecute such crimes. The order authorized special agents of the FBI to 'intercept wire communications of Irving Kahn and others as yet unknown' to and from the two named telephones concerning gambling activities.

The authorization order further provided that status reports were to be filed with Judge Campbell on the fifth and 10th days following the date of the order, showing what progress had been made toward achievement of the order's objective, and describing any need for further interceptions.3 The first such report, filed with Judge Campbell on March 25, 1970, indicated that the wiretap had been terminated because its objectives had been attained. The status report gave a summary of the information garnered by the interceptions, stating in part that on March 21 Irving Kahn made two telephone calls from Arizona to his wife at their home in Chicago and discussed gambling wins and losses, and that on the same date Minnie Kann, Irving's wife, made two telephone calls from the intercepted telephones to a person described in the status report as 'a known gambling figure,' with whom she discussed various kinds of betting information.

Both Irving and Minnie Kahn were subsequently indicted for using a facility in interstate commerce to promote, manage, and facilitate an illegal gambling busi- ness, in violation of 18 U.S.C. § 1952.4 The Government prosecutor notified the Kahns that he intended to introduce into evidence at trial the conversations intercepted under the court order. The Kahns in turn filed motions to suppress the conversations. These motions were heard by Judge Thomas R. McMillen in the Northern District of Illinois, who, in an unreported opinion, granted the motion to suppress. He viewed any conversations between Irving and Minnie Kahn as within the 'marital privilege,' and hence inadmissible at trial.5 In addition, all other conversations in which Minnie Kahn was a participant were suppressed as being outside the scope of Judge Campbell's order, on the ground that Minnie Kahn was not a person 'as yet unknown' to the federal authorities at the time of the original application.

The Government filed an interlocutory appeal from the suppression order.6 A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed that part of the District Court's order suppressing all conversations of Minnie Kahn, but reversed that part of the order based on the marital privilege. 471 F.2d 191. The court held that under the wiretap order all intercepted conversations had to meet two requirements before they could be admitted into evidence:

'(1) that Irving Kahn be a party to the conversations, and (2) that his conversations intercepted be with 'others as yet unknown." Id., at 195.

The court then construed the statutory requirements of 18 U.S.C. §§ 2518(1)(b) (iv) and 2518(4)(a) that the person whose communications are to be intercepted is to be identified if known, as excluding from the term 'others as yet unknown' any 'persons (who) careful investigation by the government would disclose were probably using the Kahn telephones in conversations for illegal activities.' Id., at 196. Since the Government in this case had not shown that further investi- gation of Irving Kahn's activities would not have implicated Minnie in the gambling business, the Court of Appeals felt that Mrs. Kahn was not a 'person as yet unknown' within the purview of Judge Campbell's order.

We granted the Government's petition for certiorari, 411 U.S. 980, 93 S.Ct. 2275, 36 L.Ed.2d 956, in order to resolve a seemingly important issue involving the construction of this relatively new federal statute.7

At the outset, it is worth noting what issues are not involved in this case. First, we are not presented with an attack upon the constitutionality of any part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Secondly, review of this interlocutory order does not involve any questions as to the propriety of the Justice Department's internal procedures in authorizing the application for the wiretap.8 Finally, no argument is presented that the federal agents failed to conduct the wiretap here in such a manner as to minimize the interception of innocent conversations.9 The question presented is simply whether the conversations that the Government wishes to introduce into evidence at the respondents' trial are made inadmissible by the 'others as yet unknown' language of Judge Campbell's order or by the corresponding statutory requirements of Title III.

In deciding that Minnie Kahn was not a person 'as yet unknown' within the meaning of the wiretap order, the Court of Appeals relied heavily on an expressed objective of Congress in the enactment of Title III: the protection of the personal privacy of those engaging in wire communications.10 In light of this clear congressional concern, the Court of Appeals reasoned, the Government could not lightly claim that a person whose conversations were intercepted was 'unknown' within the meaning of Title III. Thus, it was not enough that Mrs. Kahn was not known to be taking part in any illegal gambling business at the time that the Government applied for the wiretap order; in addition, the court held that the Government was required to show that such complicity would not have been discovered had a thorough investigation of Mrs. Kahn been conducted before the wiretap application.

In our view, neither the legislative history nor the specific language of Title III compels this conclusion. To be sure, Congress was concerned with protecting individual privacy when...

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