United States v. Lanza

• Citation: 341 F. Supp. 405
• Decision Date: 30 March 1972
• Docket Number: Crim. No. 71-83.
• Parties: UNITED STATES of America v. Joseph Louis LANZA, also known as Joe Lanza, et al.
• Court: U.S. District Court — Middle District of Florida

341 F. Supp. 405

UNITED STATES of America v. Joseph Louis LANZA, also known as Joe Lanza, et al.

Crim. No. 71-83.

United States District Court, M.D. Florida, Orlando Division.

March 30, 1972.

COPYRIGHT MATERIAL OMITTED

John L. Briggs, U. S. Atty., William M. James, Jr., Bernard H. Dempsey, Jr., Asst. U. S. Attys., for the United States.

Ayres, Swigert, Cluster, Tucker & Curry, Ocala, Fla., Roth, Segal & Levine, Orlando, Fla., Frank Ragano, Tampa, Fla., Michael Sigman, Andrew A. Welch, Orlando Fla., Walter G. Arnold, Jacksonville, Fla., James M. Russ, Orlando, Fla., Arnold D. Levine, Tampa, Fla., Clinton A. Curtis, Lake Wales, Fla., James J. Hogan, Miami Beach, Fla., Edward J. Hanlon, Jr., Richard S. Rhodes, Edward R. Kirkland, Leo W. Haley, Orlando, Fla., Richard C. Langford, Lakeland, Fla., David M. Porter, Titusville, Fla., Donald R. Corbett, James S. Byrd, Orlando, Fla., Walter E. Foster, Jr., Daytona Beach, Fla., Harvey C. Poe, Jr., Melbourne, Fla., Dan R. Warren, Daytona Beach, Fla., for Joseph Louis Lanza and others.

ORDER

TJOFLAT, District Judge.

This case is before the Court on the defendants' motion to suppress wiretap evidence. The evidence was obtained from six wiretaps conducted pursuant to Court order by the Florida Department of Law Enforcement (FDLE) between May 12 and October 17, 1971. In each instance, the application for the intercept order was authorized by Reubin O'D. Askew, Governor of Florida; an affidavit was presented to Florida Supreme Court Justice James C. Adkins, Jr. by FDLE Special Agent Frank D. Troy; and the order was issued by Justice Adkins. This order is not dispositive of defendants' motion; rather, it is directed to several threshold legal issues they have raised.

I. WHETHER THE GOVERNOR IS AUTHORIZED BY 18 U.S.C. § 2516 TO APPLY FOR A WIRETAP ORDER.

Section 2516(2),¹ Title 18, United States Code, permits the "principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof" to apply to a judge for an order authorizing a wire interception. Florida has chosen to implement this section by designating, among others, its chief executive officer, the Governor to authorize initial applications for monitoring. Fla.Stat. § 934.07, F.S.A.² The question is whether the chief executive officer of the State is within the contemplation of the federal statute authorizing the "principal prosecuting attorney" of the State to make an initial approval.

Initially, it should be observed that the purpose of Congress in enacting the section in question was clearly not to designate a particular officer by name or title, but, rather, to provide for the making of policy decisions at the highest practicable policy-making levels.

In most States, the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. (Emphasis added). Senate Report No. 1097, U.S.Code Cong. & Admin.News (1968) p. 2187.

The question to be decided by whomever makes the prior executive approval of any application for electronic interception is not one of law but policy. The legal sufficiency of an application is not what is to be determined at the prior executive approval level. A particular application may meet all the legal requirements, and electronic monitoring may well be lawful in a particular case; but the executive still must decide whether monitoring should be used. His determination is whether a particular proposed use of these techniques would be consistent with the overall policy respecting monitoring which has been, or should be, followed by the State. It follows, then, that the greater the degree of public responsibility attributable to the executive making the initial determination of approval, and the higher his public visibility, the greater is the likelihood that he will be called to account for errors in administration of policy and that the safeguards of the federal statute will be effective.

It was precisely these considerations that led Congress to enact a statute limiting the number and kind of persons who could initiate administrative proceedings leading to federal electronic monitoring, and that led the Court of Appeals for the Fifth Circuit recently to conclude that the power to authorize initial applications could not be delegated by the Attorney General to an inferior under the general delegation statute, 28 U.S.C. § 510.³

By expressing its intention that only "a publicly responsible official, subject to the political process" could initiate a wiretap application, Congress wanted to make certain that every such matter would have the personal attention of an individual appointed by the President and confirmed by the Senate. Its reasoning was that this narrow limitation to top department officials would (1) establish a unitary policy in the use of the awesome power conferred, and (2) require that power to be exercised with a circumspection reenforced by ready identifiability of he who was responsible for its use, thus maximizing the guarantee that abuses would not occur. United States v. Robinson, (5th Cir., January 12, 1972, No. 71-1058).

In carrying out these safeguards in its statute, Florida has chosen to delimit this authority even more severely than does the statute governing federal applications. The Florida statute authorizes no delegation whatever. Applications may be approved initially only by the particular person who is the prosecutorial head of each jurisdiction in the State, as well as the State's legal department, and the one person to whom all are responsible, and who is superior in title and responsibility to each and all of them — the Governor.⁴ Florida thus presents a situation which is precisely the opposite of that considered in Robinson. Here, the question is not whether someone inferior to the Attorney General may perform the function of approving applications, but whether his superior may do so. In considering this question, it may be instructive to inquire into the likely result in Robinson had the person authorizing the application been, not a Deputy Assistant Attorney General, but the President of the United States — the only federal executive officer superior to the Attorney General in title and responsibility, and the only federal officer comparable in public visibility and accountability to the Governor on the state level.

The defendants argue that Robinson stands for a strict reading of the statute, not for permitting the states to designate the officials who should make the policy decisions regarding applications for wiretap orders. A strict reading of 18 U.S.C. § 2516(1)⁵ is consistent with the language of the statute, since it specifically names the officers concerned. In § 2516(2)⁶, however, Congress was faced with fifty state statutory schemes for parceling out the state's law enforcement powers. The section must be construed so as to permit each state to fit its scheme into the framework of the federal statute even though the distribution of power or the names of the officers may differ from state to state. Assuming for the moment that § 2516(2) should be strictly construed as argued by the defendants, the only officers in Florida able to apply for wiretap orders would be the county solicitors. The Governor would not qualify since he is not named in the federal statute; nor would the Attorney General, since he is not named in the Florida statute (Fla. Stat. § 934.07, F.S.A. names the department of legal affairs); nor would the state attorneys for the various judicial circuits, because judicial circuits are not political subdivisions.

It is true, as defendants urge, that the federal statute envisions no "further breakdown" below the county level. The idea is to start at the top of the law enforcement policy process and work down to that level. Florida has not attempted further breakdown; the Legislature has simply said that the Governor is at the top of this process.

In this case there can be no doubt that the Governor of Florida, in all respects material to the determination of the propriety of wiretaps as a matter of state policy, is superior to the Attorney General and to state attorneys. As the chief executive, he is superior to all other members of the executive branch to the extent their functions relate to his. It is the Governor, not his legal representative, who formulates basic state policy, and who reports to the public on the execution of state policy. In sum, it is the Governor, to a greater degree than any other public officer, who fits the criterion set by Congress and referred to by the Court of Appeals as "a publicly responsible official, subject to the political process with ready identifiability of he who was responsible for its use, thus maximizing the guarantee that abuses would not occur." United States v. Robinson, supra.

The defendants are thus in the anomalous position of complaining that they received, under the Florida statute, more protection, rather than less, than the federal statute requires. Instead of the Attorney General or a state attorney, the Governor himself — the public officer who, alone, is in a position to ensure a completely centralized policy concerning wiretapping — personally examined the application and pronounced it consistent with the public policy of the State of Florida. There is no way by which the intention of Congress could have been more completely effectuated.

It is clear that the Governor represents the State in matters of policy, and in such matters, with which the federal statute is concerned, he is superior to all "prosecuting attorneys" of the State, however they or he might be...