United States v. Pine

• Citation: 473 F. Supp. 349
• Decision Date: 23 March 1978
• Docket Number: Crim. No. Y-77-0534.
• Parties: UNITED STATES of America v. James A. PINE, Jr., et al.
• Court: U.S. District Court — District of Maryland

473 F. Supp. 349

UNITED STATES of America v. James A. PINE, Jr., et al.

Crim. No. Y-77-0534.

United States District Court, D. Maryland.

March 23, 1978.

COPYRIGHT MATERIAL OMITTED

Russell J. White, Towson, Md., for defendants.

Herbert Better, Baltimore, Md., for the Government.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

The defendant, James A. Pine, seeks to suppress the tape recordings of several telephone conversations with the co-defendant John Paul Daniel. The government has offered these tapes as evidence to support the charge contained in the indictment that the defendants committed mail fraud by attempting to process a false automobile accident claim. The contested conversations were intercepted while Daniel's telephone was under surveillance in March and April, 1977. Pine contends that the interception of the calls, their disclosure to the Federal Grand Jury in October, 1977, and their proposed use at trial violates the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.

The tap on Daniel's phone, sought by the Baltimore County States Attorney, was authorized by Judge H. Kemp MacDaniel of the Circuit Court of Baltimore County and was executed by the Baltimore County Police Department. Its purpose was to investigate Daniel's suspected involvement in an alleged conspiracy to sell various narcotic drugs including cocaine, PCP, and marijuana. Specifically, the investigators were looking for a local source of money which might finance a large purchase of cocaine from a supplier in Florida for which Daniel was a suspected middle-man.

Coincidentally, in the early morning of April 9, 1977, Daniel was involved in an automobile accident when another vehicle struck his car in the rear. Later that morning, he made a telephone call from the tapped phone to Pine, an attorney, to discuss the accident and the preparation of an injury claim. After intercepting this call and recognizing what he considered to be its criminal implication, the detective in charge advised the supervising Assistant States Attorney of the interception. The States Attorney brought the call to the attention of Judge MacDaniel on the morning of April 11.

Subsequent interceptions of Pine-Daniel conversations took place on April 11 at 11:34 AM and 6:08 PM, on April 12 at 8:27 PM, and on April 14 at 5:59 PM. Judge MacDaniel authorized an extension of the narcotics wiretap on April 27, 1977, but the police made no additional interceptions of conversations with Pine pursuant to it. Daniel now faces a state indictment for his narcotics involvement as well as the pending federal indictment with Pine.

Title III, 18 U.S.C. § 2517(5), explicitly contemplates the interception and admissibility of communications relating to crimes other than those specified in the order of authorization. That section provides:

(5) When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.

In the present case the Baltimore County authorities, having intercepted the several Pine-Daniel conversations made the required application to Judge MacDaniel for an order enabling them to disclose the contents of the interceptions. On May 9, 1977, Judge MacDaniel authorized the disclosure which Pine now challenges.

The defendant first argues that a state judge cannot enter a § 2517(5) order for the disclosure of tapes in federal proceedings. There is no basis for this contention. The statute provides that if a "judge of competent jurisdiction" makes the appropriate finding, the contents of an "other crime" interception may be used ". . . in any proceeding held under the authority of the United States . . .." 18 U.S.C. §§ 2517(5), (3). A "judge of competent jurisdiction" includes "a judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire or oral communications . . .." 18 U.S.C. § 2510(9). Judge MacDaniel of the Baltimore County Circuit Court satisfied this definition. See United States v. Marion, 535 F.2d 697, 708 (2d Cir. 1976).

Next, the defendant contends that the application to Judge MacDaniel, approved on May 9, was not made "as soon as practicable." Assuming without deciding that the application could have been made several days earlier, the timing of the approval, sought and granted well before the October disclosure to the Federal Grand Jury, supplies no grounds for suppression. See United States v. Vento, 533 F.2d 838, 855 (3rd Cir. 1969); United States v. Denisio, 360 F.Supp. 715, 720 (D.Md.1973); See also United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The case of United States v. Brodson, 528 F.2d 214 (7th Cir. 1975), cited by the defendant does not suggest a contrary result for there the government never applied for the required judicial approval.

Defendant also complains that the approval for disclosure of the interceptions was improperly granted; that contrary to Judge MacDaniel's finding, the contents were not "otherwise intercepted in accordance with the provisions of the chapter."

His first challenge to the substance of the disclosure order is based on the fact that an original wiretap order could not have been authorized for the crimes which the tapes allegedly reveal. State v. Siegal, 13 Md.App. 444, 462-3, 285 A.2d 671 (1971); aff'd 266 Md. 256, 292 A.2d 86 (1972). Section 2517(5), however, does not require that the unrelated "other crime" be a "designated offense", i. e., a crime which can alone be the focus of a wiretap. Sen. Report 1097, 2 U.S.Code Cong. & Admin.News, 90th Cong., 2d Sess., pp. 2112, 2189 (1968). Accordingly, in United States v. Daly, 535 F.2d 434, 439-440 (8th Cir. 1976), wiretap evidence of mail fraud, for which the defendants here are indicted, was admitted under § 2517(5).

The substantive requirements of a post interception application under § 2517(5) call for: . . . a showing that the original order was lawfully obtained, that it was sought in good faith and not as subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order.

Sen. Report 1097, 2 U.S.Code Cong. & Admin.News at 2189. This check is designed to close a potential avenue around the stringent requirements of Title III.

The framers of Title III presumably intended by this requirement to prevent evasion of the several restrictions upon original applications (e. g., showing of probable cause, enumerated serious crime, ineffectiveness of other investigatory techniques as to that offense). Otherwise, the applicant could easily name one crime while in fact he may have anticipated intercepting evidence of a different crime for which the prerequisites could not be satisfied. Such "subterfuge searches", in addition to their dissonance with Title III, would indeed run afoul of the Fourth Amendment.

United States v. Marion, 535 F.2d at 700-701.

There is no question that the original order in this case was lawfully obtained, in good faith, and was not a pretext. The wiretap has resulted in several indictments for narcotics involvement and the auto accident did not even occur until after the surveillance had begun. Accordingly, the defendant focuses his attack on the final requirement of an "other crimes" interception. He argues that his communications with Daniel were not intercepted during the course of a lawfully executed order because the state authorities failed to minimize their interceptions of Daniel's telephone calls as required by § 2518(5). This contention also lacks merit.

Preliminarily, Pine has limited standing to pursue this objection. "Fourth Amendment rights are personal rights which like some other constitutional rights may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). The standing provision of Title III, § 2518(10)(a), incorporates this principle. Id., 394 U.S. at 176, n.9, 89 S.Ct. 961. Several courts, citing Alderman, have determined that only the subscriber to the telephone has standing to object to improper minimization, since it is his or her privacy, not the various callers', which is protected by minimization. United States v. Fury, 554 F.2d 522, 526 (2d Cir. 1977); United States v. Poeta, 455 F.2d 117, 122 (2d Cir. 1972); see also United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974). Because the interception of some innocent, non-pertinent conversation is inevitable, improper minimization involves repeated, unreasonable interceptions. Therefore, to make the required showing Pine would necessarily have to rely on interceptions of many calls between Daniel and third parties, thus using alleged violations of the rights of others to vindicate his own.

The defendant, citing United States v. Scott, 164 U.S.App.D.C. 125, 504 F.2d 194 (1974), argues that standing ought to be accorded a party moving for suppression on the basis of alleged improper minimization. Under § 2518(10)(a), "any aggrieved person" may move to suppress the contents of any intercepted communication on the grounds that

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted

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