United States v. Smith

• Decision Date: 08 January 1971
• Docket Number: Cr. No. 4277-CD.
• Citation: 321 F. Supp. 424
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Melvin Carl SMITH, Defendant.

321 F. Supp. 424

UNITED STATES of America, Plaintiff, v. Melvin Carl SMITH, Defendant.

Cr. No. 4277-CD.

United States District Court, C. D. California.

January 8, 1971.

Robert L. Meyer, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Larry S. Flax, Asst. U. S. Atty., for plaintiff.

Jean Kidwell, Kidwell, Pestana & Smith, Michael Tigar, Professor of Law, Los Angeles, Cal., for defendant.

MEMORANDUM OPINION

FERGUSON, District Judge.

Melvin Carl Smith was found guilty in this court of two counts involving unlawful possession of firearms in violation of 18 U.S.C., App. § 1202(a) (possession of a firearm by a person previously convicted of a felony). He was sentenced to two years in prison on each of the two counts, to begin and run consecutively. Defendant appealed his conviction on October 31, 1969.

While the appeal was pending, the government disclosed to the Court of Appeals that it had searched its files and discovered that the defendant had participated in conversations which were monitored by electronic surveillance conducted by the federal government to gather intelligence information relating to the national security. In light of this, the circuit court granted the government's motion for a limited remand to this court "for proceedings required by Alderman v. United States, 394 U.S. 165 89 S.Ct. 961, 22 L.Ed.2d 176".

The Supreme Court held, in Alderman, that "surveillance records as to which any defendant has standing to object should be turned over to him without being screened in camera by the trial judge". 394 U.S. at 182, 89 S.Ct. at 971. In a per curiam opinion, Giordano v. United States, 394 U.S. 310, 313, 89 S. Ct. 1163, 1165, 22 L.Ed.2d 297 (1969), the Court further stated that "of course, a finding by the District Court that the surveillance was lawful would make disclosure and further proceedings unnecessary".

Consistent with these Supreme Court guidelines, three separate determinations must be made in this case: (1) whether the defendant has standing to object; (2) whether the electronic surveillance is constitutionally proper; and (3) if it is determined that the surveillance was improper, whether the evidence against the defendant is "tainted".

Since the defendant was a party to the monitored conversations, it is conceded that he has standing to raise an objection. 394 U.S. at 176, 89 S.Ct. 961, 22 L.Ed.2d 176. The second issue is whether the maintenance of the electronic surveillance violated the defendant's Fourth Amendment rights. Disclosure is required only if the court determines that the surveillance was improper. Following an order of disclosure, there would be a full hearing to determine whether the evidence against the defendant at trial grew out of his illegally-overheard conversations. Of course, this recognizes that the government might "prefer dismissal of the case to disclosure of the information". 394 U.S. at 181, 89 S.Ct. at 971, 22 L.Ed.2d 176.

A threshold issue which has been raised by both sides is the relationship of the Omnibus Crime Control and Safe Streets Act of 1968 to the surveillance in question here. The government contends that the Act constitutes a congressional recognition of the authority it claims in the present case. The Act contains the statement that:

"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power."

The major thrust of the relevant portion of this Act makes electronic eavesdropping a federal crime punishable by a fine of $10,000, or imprisonment of up to five years, or both. However, there are certain exceptions, and under these limited circumstances electronic eavesdropping is not a federal crime. The portion quoted above provides for one of these exceptions. Thus, the President does not commit a crime under this statute when he authorizes electronic surveillance "to obtain foreign intelligence information deemed essential to the security of the United States". Similarly, it provides that the President is exempt from the criminal sanctions of the Act when he takes "such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means".

Regardless of these exceptions in the criminal statute, the President is, of course, still subject to the constitutional limitations imposed upon him by the Fourth Amendment. Congress expressly recognized this when it stated that evidence resulting from such an electronic surveillance could "be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable". Thus, the issue before this court is whether the electronic surveillance conducted by the government in this case is consistent with the constitutional requirements of the Fourth Amendment.

The government asserts that, in spite of the fact that a warrant was not obtained prior to instituting the surveillance, it was a constitutionally proper surveillance because the Attorney General of the United States expressly authorized it to gather "intelligence information deemed necessary to protect the nation from attempts of domestic organizations to use unlawful means to attack and subvert the existing structure of the government". The issue thus becomes whether the government can, consistent with constitutional standards, institute electronic surveillance without prior judicial authorization where it is authorized by the Attorney General in the interest of national security. The Supreme Court has expressly avoided ruling on this issue. Katz v. United States, 389 U.S. 347, 358 n. 23, 88 S.Ct. 507, 19 L. Ed.2d 576 (1967); Giordano v. United States, 394 U.S. 310, 314, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969) (Justice Stewart concurring).

In his concurring opinion in Katz, Justice White expressed the view that the warrant procedure should not be required where the Attorney General has "considered the requirements of national security and authorized electronic surveillance as reasonable". 389 U.S. at 364, 88 S.Ct. at 518, 19 L.Ed.2d 576. Justice Douglas and Justice Brennan strongly disagreed, stating that there ought not to be such an exception. 389 U.S. at 359-360, 88 S.Ct. 507, 19 L.Ed.2d 576. Justice Black would presumably allow such surveillance, indeed all electronic surveillance, since he has consistently stated that "eavesdropping carried on by electronic means" does not constitute "a `search' or `seizure'", and thus is not within the purview of the Fourth Amendment. 389 U.S. at 364-374, 88 S.Ct. 507, 19 L.Ed.2d 576. In Alderman, Justice White suggested that in light of the disclosure requirement the government might have to dismiss certain cases "in deference to national security". This seems to suggest that he may have reconsidered his initial position, since under it national security cases would be almost per se lawful, and therefore not subject to the disclosure requirement.

The government asserts that the President, acting through the Attorney General, has the inherent constitutional power: (1) to authorize, without a judicial warrant, electronic surveillance in "national security" cases; and (2) to determine unilaterally whether a given situation is a matter within the concept of national security.

It should be noted that the government does not limit its assertion of this power to those cases involving foreign intelligence, i. e., espionage and counter-espionage. Indeed, there is nothing in the present case which suggests that it is anything other than a purely domestic situation. It might very well be that warrantless surveillance of this type, while unconstitutional in the domestic situation, would be constitutional in the area of foreign affairs. This possible distinction is largely due to the President's long-recognized, inherent power with respect to foreign relations. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948); United States v. Belmont, 301 U.S. 324, 328, 57 S.Ct. 758, 81 L.Ed. 1134 (1937).

This court makes no decision with regard to whether there might be such an exemption from the warrant requirement in security cases involving foreign relations. Nor does it determine whether this exception would apply only to the requirement of the actual warrant, or also to the warrant proceeding wherein it could be judicially determined whether the case in question fell into the exempted area.

The government's position is that the Fourth Amendment prohibits only "unreasonable" searches and seizures. Thus, the warrant provision is viewed as merely one possible means of insuring that the search is reasonable. With this basis the government then asserts that:

"Faced with such a state of affairs, any President who takes seriously his oath to `preserve, protect and defend the Constitution' will no doubt determine that it

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