United States v. Giordano
416 U.S. 505 (1974)

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U.S. Supreme Court

United States v. Giordano, 416 U.S. 505 (1974)

United States v. Giordano

No. 72-1057

Argued January 8, 1974

Decided May 13, 1974

416 U.S. 505

Syllabus

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides in 18 U.S.C. § 2516(1) that

"the Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge . . . for . . . an order authorizing or approving the interception of wire or oral communications"

by federal investigative agencies seeking evidence of certain designated offenses; and further provides that the contents of intercepted communications, or evidence derived therefrom, may not be received in evidence at a trial if the disclosure of the information would violate Title III, 18 U.S.C. § 2515, and may be suppressed on the ground, inter alia, that the communication was "unlawfully intercepted," 18 U.S.C. § 2518(10)(a)(i). In this case, an application purportedly authorized by a specially designated Assistant Attorney General for an order permitting the wiretap of the telephone of respondent Giordano, a narcotics offense suspect, was submitted to the Chief Judge of the District Court, who then issued an interception order and later an extension order based on a similar application, but also including information obtained from the previously authorized interception and extending the authority to conversations of additional named individuals calling to or from Giordano's telephone. The interception was terminated when Giordano and the other respondents were arrested and charged with narcotics violations. During suppression hearings, it developed that the wiretap applications had not, in fact, been authorized by a specially designated Assistant Attorney General, but that the initial application was authorized by the Attorney General's Executive Assistant and the extension application had been approved by the Attorney General himself. The District Court sustained the motions to suppress on the ground that the Justice Department officer approving each application had been misidentified in the applications and intercept orders. The Court of Appeals affirmed, but on the ground that the initial authorization violated § 2516(1), thereby requiring suppression of the wiretap

Page 416 U. S. 506

and derivative evidence under §§ 2515 and 2518(10)(a)(i), inter alia.

Held:

1. Congress did not intend the power to authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him. Pp. 416 U. S. 512-523.

(a) Notwithstanding 28 U.S.C. § 510, which authorizes the Attorney General to delegate any of his functions to any other officer, employee, or agency of the Justice Department, § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. Pp. 416 U. S. 512-514.

(b) This interpretation of § 2516(1) is strongly supported by the purpose of the Act effectively to prohibit all interceptions of oral and wire communications except those specifically provided for, and by its legislative history. Pp. 416 U. S. 514-523.

2. Primary or derivative evidence secured by wire interceptions pursuant to a court order issued in response to an application which was, in fact, not authorized by the Attorney General or a specially designated Assistant Attorney General must be suppressed under § 2515 upon a motion properly made under § 2518(10)(a), and hence the evidence obtained from the interceptions pursuant to the initial court order was properly suppressed. Pp. 416 U. S. 524-529.

(a) Under § 2518(10)(a)(i) the words "unlawfully intercepted" are not limited to constitutional violations, but the statute was intended to require suppression where there is a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. Pp. 416 U. S. 524-528.

(b) Since Congress intended to condition the use of intercept procedures upon the judgment of a senior Justice Department official that the situation is one of those warranting their use, thus precluding resort to wiretapping in various situations where investigative personnel would otherwise seek intercept authority from the court and the court would very likely authorize its use, it is evident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored. Pp. 416 U. S. 528-529.

Page 416 U. S. 507

3. Communications intercepted pursuant to the extension order were inadmissible, since they were evidence derived from the communications invalidly intercepted pursuant to the initial order. Pp. 416 U. S. 529-533.

469 F.2d 522, affirmed.

WHITE, J., delivered the opinion of the Court, in Parts I, II, and III of which all Members joined, and in Part IV of which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. DOUGLAS, J., filed a concurring opinion, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 416 U. S. 580. POWELL, J., filed an opinion concurring in Parts I, II, and III of the Court's opinion and dissenting from Part IV, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 416 U. S. 548.

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