United States v. King

• Decision Date: 23 November 1971
• Docket Number: Crim. No. 11627.
• Parties: UNITED STATES of America, Plaintiff, v. Richard Michael KING, aka Richard Hansen, et al., Defendants.
• Court: U.S. District Court — Southern District of California

335 F. Supp. 523

UNITED STATES of America, Plaintiff, v. Richard Michael KING, aka Richard Hansen, et al., Defendants.

Crim. No. 11627.

United States District Court, S. D. California.

November 23, 1971.

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Joseph Milchen, E. Mac Amos, Jr., Asst. U. S. Attys., Charles J. Fanning, Southwestern Unit, Narcotics and Dangerous Drugs Division, San Diego, Cal., Elizabeth Meyer, Southwestern Unit, Narcotics and Dangerous Drugs Division, San Diego, Cal., for the United States.

Michael S. Hegner, San Diego, Cal., for Richard King.

Kevin J. McInerney, San Diego, Cal., for Gordon Ardel Maack.

Douglas R. Reynolds, San Diego, Cal., for Paul A. Vesco, Jr.

William J. Zumwalt, San Diego, Cal., for John Ferris Pope.

William Brockett, San Diego, Cal., Federal Defenders, Inc., for Virginia Marie Pope.

Artie G. Henderson, San Diego, Cal., for Miki Dee Thieda.

Frank B. Gregorcich, San Diego, Cal., for James Russell Vukich.

Charles R. Khoury, Jr., San Diego, Cal., for Carole J. Swisher.

George W. Dixon, Tacoma, Wash., for Robert Craig Light.

Mobley M. Milam, San Diego, Cal., for John Fahlen.

Paul G. Evans, La Jolla, Cal., for James Leo Olson.

MEMORANDUM OPINION AND ORDER ON PRETRIAL MOTIONS

NIELSEN, District Judge.

The defendants and moving parties were originally indicted by the Grand Jury on May 12, 1971. This indictment was in two counts, charging in Count 1 a conspiracy to conceal, transport and possess marijuana with the intent to distribute it, and in Count 2 the use of a communications facility in facilitating the commission of and attempting and conspiring to commit the offenses of importation, concealment and transportation of marijuana.

The Grand Jury returned a 30 count superseding indictment on July 12, 1971. In Count 1, all defendants are charged with conspiring to smuggle, transport, conceal and possess marijuana with the intent to distribute it. All remaining counts are charges of using a communications facility in facilitating commission of and attempting and conspiring to commit the offenses of importation, concealment and transportation of marijuana. In Counts 2, 3, 4 and 5, King is charged; in Counts 6, 7 and 8, Olson is charged; in Counts 9, 10, 11 and 12, Swisher is charged; in Counts 13 and 14, John Pope is charged; in Counts 15, 16, 17 and 18, Vesco is charged; in Counts 19 and 20, Vukich is charged; in Counts 21 and 22, Lordson is charged; in Counts 23 and 24, Fahlen is charged; in Counts 25, 26 and 27, Baldwin is charged; in Counts 28 and 29, Beth is charged; and in Count 30, Thieda is charged.

From the various pleadings, affidavits and the evidence adduced before this Court in the hearings on the pretrial motions, it appears that the prosecution is based primarily upon interceptions and recordings of telephone conversations over the telephone of defendant King in his apartment located at 2002 First Avenue, San Diego, California, between March 20, 1971 and May 3, 1971. These interceptions were carried out under authority of an order authorizing interception of wire communications issued on March 20, 1971, by Chief Judge Edward J. Schwartz of the Southern District of California upon application by the United States under the provisions of Title III, Omnibus Crime Control and Safe Streets Act of 1968, Chapter 119 of Title 18, United States Code, hereafter referred to as Title III. Extensions of the order were issued covering this entire period.

Portions of the telephone conversations so intercepted were incorporated into probable cause affidavits as the basis for search warrants issued for the residence of defendant King, as well as for the office of his accountant.

On May 3, 1971, as a result of the information developed by intercepted conversations in conjunction with other investigation and surveillance, the vessel Mercy Wiggins was boarded off the northern California coast, defendants Olson and Maack were arrested on the vessel, and 10,100 pounds of marijuana were seized together with the boat. At approximately the same time as that seizure, the vessel Andiamo was seized inside San Francisco Bay, and John and Virginia Pope were arrested aboard it. At approximately the same time, King, Light, Thieda and Vukich the driver were arrested in King's camper near the Golden Gate Bridge, and certain allegedly incriminating evidence was seized from Vukich's person in a search following this arrest. Swisher was arrested later in San Diego; Fahlen much later in Hawaii; Lordson, Beth and Baldwin remain fugitives.

Motions of various kinds have been filed by all appearing defendants, and by order of this Court the motions originally filed in Criminal No. 11257 have been ordered transferred to and consolidated with the motions filed in this instant action. Also, by permission of this Court, King, Olson, Vesco, Vukich and Swisher have filed motions joining in all other defendants' motions.

The following motions are before the Court at this time:

1. Motions to suppress the wiretap evidence.

2. Olson's motion to declare the seizure of the vessel Mercy Wiggins and its cargo illegal and without probable cause.

3. Olson's motion for a change of venue.

4. King's motion to suppress the evidence seized under the search warrants for King's apartment and for the office of his accountant.

5. Vukich's motion to suppress the evidence seized from him at the time of his arrest.

6. Virginia Pope's motion to suppress statements made by her after her arrest.

7. Olson's motion for a severance and separate trial.

8. Olson's motions to dismiss Counts 6, 7 and 8.

9. King's motions to dismiss Counts 2, 3, 4 and 5.

10. Vukich's motion to dismiss Counts 19 and 20.

11. Virginia Pope's motion for a severance.

12. Maack's motion to require the Government to elect in Count 1 as to which conspiracy it is going to rely upon, claiming that a single conspiracy is charged to violate three separate laws.

13. Vesco's and Thieda's motion to dismiss for failure to record the Grand Jury proceedings.

14. Virginia Pope's motion for an order disclosing the identity of the informer, in which all defendants have orally joined.

15. King's motion to declare the pen register illegal.

I MOTIONS TO SUPPRESS EVIDENCE OBTAINED THROUGH ELECTRONIC SURVEILLANCE

It is apparent that the primary target of defendants' pretrial motions in this case is the electronic surveillance of King's telephone, authorized by judicial order pursuant to 18 U.S.C. § 2518.

The attack, in which all defendants have joined, is mounted on six bases: first, that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the statute which provides for the interception of wire communications, is constitutionally invalid on its face; second, that the affidavits presented to Judge Schwartz in support of the Government's application for a wiretap order were insufficient under the statute; third, that the authorizing order itself was overbroad and therefore not in compliance with statutory requirements; fourth, that the Government agents who executed the order failed to adhere to its provisions; fifth, that the privilege inhering in the attorney-client relationship was violated; and sixth, that the brief presence of a San Diego County Deputy Sheriff during the wiretap renders the entire surveillance invalid. This Court cannot agree that any of the foregoing objections are sufficient in the circumstances of this case to warrant complete suppression of the evidence so acquired.

A. The Constitutionality of the Statute

The constitutional challenge to Title III centers on Section 2518 of 18 U.S.C., which establishes the procedure for the interception of wire or oral communications. Defendants contend that this section violates the Fourth Amendment prohibition against unreasonable searches and seizures in that it authorizes electronic surveillance without providing adequate safeguards to personal privacy.

This argument has been raised in other districts which have adjudicated cases involving Title III wiretaps. See United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla.1971); United States v. Escandar, 319 F.Supp. 295 (S.D.Fla. 1970); United States v. Scott, 331 F. Supp. 233 (D.D.C.1971). In every opinion thus far reported the statute has been held valid on its face as following closely the "guidelines" for electronic surveillance set forth by the United States Supreme Court in the pre-statute cases of Berger v. New York, 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).

Having reviewed the statute in the context of these decisions as well as the intent of Congress, this Court reaches a like conclusion. 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.

It is therefore the finding of this Court, in accord with the district judges in Sklaroff, Escandar, and Scott, supra, that the...