On the Government's application for an order authorizing a
wiretap interception of the home telephones of respondent Irving
Kahn, a suspected bookmaker, pursuant to Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, the District Judge
entered an order pursuant to 18 U.S.C. § 2518, which described the
telephones to be tapped and found probable cause to believe that
Mr. Kahn and "others as yet unknown" were using the telephones to
conduct an illegal gambling business, and authorized FBI agents to
intercept wire communications "of" Mr. Kahn and "others as yet
unknown." The agents intercepted incriminating calls made by Mr.
Kahn in Arizona to respondent Mrs. Kahn at their home in Chicago,
and also incriminating calls made by Mrs. Kahn to "a known gambling
figure." The respondents were subsequently indicted for violating
the Travel Act. Upon being notified of the Government's intention
to introduce the intercepted conversations at trial, respondents
moved to suppress them. The District Court granted the motion. The
Court of Appeals affirmed, construing the requirements of 18 U.S.C.
§§ 2518(1)(b)(iv) and 2518(4)(a) that the person whose
communications are to be intercepted is to be identified, if known,
as excluding from the term "others as yet unknown" any persons who
careful Government investigation would disclose were probably using
the telephones for illegal activities, and that, since the
Government had not shown that further investigation of Mr. Kahn's
activities would not have implicated his wife in the gambling
business, she was not a "person as yet unknown" within the purview
of the wiretap order.
Held:
1. Title III requires the naming of a person in the application
or interception order only when the law enforcement authorities
have probable cause to believe that that individual is "committing
the offense" for which the wiretap is sought, and, since it is
undisputed here that the Government had no reason to suspect Mrs.
Kahn of complicity in the gambling business before the
wiretapping
Page 415 U. S. 144
began, it follows that, under the statute, she was among the
class of persons "as yet unknown" covered by the wiretap order. Pp.
415 U. S.
151-155.
2. Neither the language of the wiretap order nor hat of Title
III requires the suppression of legally intercepted conversations
to which Mr. Kahn was not himself a party. Pp.
415 U. S.
155-158.
471 F.2d 191, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL, JJ., joined,
post, p.
415 U. S.
158.
MR. JUSTICE STEWART delivered the opinion of the Court.
On March 20, 1970, an attorney from the United States Department
of Justice submitted an application for an order authorizing a
wiretap interception pursuant to Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, to
Judge William J. Campbell of the United States District Court for
the Northern District of Illinois. The affidavit accompanying the
application contained information indicating that respondent Irving
Kahn was a bookmaker who operated from his residence and used two
home telephones to conduct his business. [
Footnote 1] The
Page 415 U. S. 145
affidavit also noted that the Government's informants had stated
that they would refuse to testify against Kahn, that telephone
company records alone would be insufficient to support a bookmaking
conviction, and that physical surveillance or normal search and
seizure techniques would be unlikely to produce useful evidence.
The application therefore concluded that "normal investigative
procedures reasonably appear to be unlikely to succeed," and asked
for authorization to intercept wire communications of Irving Kahn
and "others as yet unknown" over two named telephone lines, in
order that information concerning the gambling offenses might be
obtained.
Judge Campbell entered an order, pursuant to 18 U.S.C. § 2518,
approving the application. [
Footnote 2] He specifically
Page 415 U. S. 146
found that there was probable cause to believe that Irving Kahn
and "others as yet unknown" were using the two telephones to
conduct an illegal gambling
Page 415 U. S. 147
business, and that normal investigative techniques were unlikely
to succeed in providing federal officials with sufficient evidence
to successfully prosecute such crimes. The order authorized special
agents of the FBI to "intercept wire communications of Irving Kahn
and others as yet unknown" to and from the two named telephones
concerning gambling activities.
The authorization order further provided that status reports
were to be filed with Judge Campbell on the fifth and 10th days
following the date of the order, showing what progress had been
made toward achievement of the order's objective, and describing
any need for further interceptions. [
Footnote 3] The first such report, filed with Judge
Campbell on March 25, 1970, indicated that the wiretap had been
terminated because its objectives had been attained. The status
report gave a summary of the information garnered by the
interceptions, stating in part that, on March 21, Irving Kahn made
two telephone calls from Arizona to his wife at their home in
Chicago and discussed gambling wins and losses, and that, on the
same date, Minnie Kahn, Irving's wife, made two telephone calls
from the intercepted telephones to a person described in the status
report as "a known gambling figure," with whom she discussed
various kinds of betting information.
Both Irving and Minnie Kahn were subsequently indicted for using
a facility in interstate commerce to promote, manage, and
facilitate an illegal gambling business,
Page 415 U. S. 148
in violation of 18 U.S.C. § 1952. [
Footnote 4] The Government prosecutor notified the Kahns
that he intended to introduce into evidence at trial the
conversations intercepted under the court order. The Kahns, in
turn, filed motions to suppress the conversations. These motions
were heard by Judge Thomas R. McMillen in the Northern District of
Illinois, who, in an unreported opinion, granted the motion to
suppress. He viewed any conversations between Irving and Minnie
Kahn as within the "marital privilege," and hence inadmissible
Page 415 U. S. 149
at trial. [
Footnote 5] In
addition, all other conversations in which Minnie Kahn was a
participant were suppressed as being outside the scope of Judge
Campbell's order, on the ground that Minnie Kahn was not a person
"as yet unknown" to the federal authorities at the time of the
original application.
The Government filed an interlocutory appeal from the
suppression order. [
Footnote 6]
A divided panel of the United States Court of Appeals for the
Seventh Circuit affirmed that part of the District Court's order
suppressing all conversations of Minnie Kahn, but reversed that
part of the order based on the marital privilege. 471 F.2d 191. The
court held that, under the wiretap order, all intercepted
conversations had to meet two requirements before they could be
admitted into evidence:
"(1) that Irving Kahn be a party to the conversations, and (2)
that his conversations intercepted be with 'others as yet
unknown.'"
Id. at 195. The court then construed the statutory
requirements of 18 U.S.C. §§ 2518(1)(b)(iv) and 2518(4)(a) that the
person whose communications are to be intercepted is to be
identified if known, as excluding from the term "others as yet
unknown" any
"persons [who] careful investigation by the government would
disclose were probably using the Kahn telephones in conversations
for illegal activities."
Id. at 196. Since the Government in this case had not
shown that further investigation
Page 415 U. S. 150
of Irving Kahn's activities would not have implicated Minnie in
the gambling business, the Court of Appeals felt that Mrs. Kahn was
not a "person as yet unknown" within the purview of Judge
Campbell's order.
We granted the Government's petition for certiorari, 411 U.S.
980, in order to resolve a seemingly important issue involving the
construction of this relatively new federal statute. [
Footnote 7]
At the outset, it is worth noting what issues are not involved
in this case. First, we are not presented with an attack upon the
constitutionality of any part of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968. Secondly, review of this
interlocutory order does not involve any questions as to the
propriety of the Justice Department's internal procedures in
authorizing the application for the wiretap. [
Footnote 8] Finally, no argument is presented that
the federal agents failed to conduct the wiretap here in such a
manner as to minimize the interception of innocent conversations.
[
Footnote 9] The question
presented is simply whether the conversations that the Government
wishes to introduce into evidence at the respondents' trial are
made inadmissible by the "others as yet unknown" language of Judge
Campbell's order or by the corresponding statutory requirements of
Title III.
Page 415 U. S. 151
In deciding that Minnie Kahn was not a person "as yet unknown"
within the meaning of the wiretap order, the Court of Appeals
relied heavily on an,expressed objective of Congress in the
enactment of Title III: the protection of the personal privacy of
those engaging in wire communications. [
Footnote 10] In light of this clear congressional
concern, the Court of Appeals reasoned, the Government could not
lightly claim that a person whose conversations were intercepted
was "unknown" within the meaning of Title III. Thus, it was not
enough that Mrs. Kahn was not known to be taking part in any
illegal gambling business at the time that the Government applied
for the wiretap order; in addition, the court held that the
Government was required to show that such complicity would not have
been discovered had a thorough investigation of Mrs. Kahn been
conducted before the wiretap application.
In our view, neither the legislative history nor the specific
language of Title III compels this conclusion. To be sure, Congress
was concerned with protecting individual privacy when it enacted
this statute. But it is also clear that Congress intended to
authorize electronic surveillance as a weapon against the
operations of organized crime. [
Footnote 11] There is, of course, some tension between
these two stated congressional objectives, and the question of how
Congress struck the balance in any particular instance cannot be
resolved simply through general reference to the statute's
expressed concern for the protection of individual privacy. Rather,
the starting point, as in all statutory construction, is the
precise wording chosen by Congress in enacting Title III.
Page 415 U. S. 152
Section 2518(1) of Title 18 U.S.C. sets out in detail the
requirements for the information to be included in an application
for an order authorizing the interception of wire communications.
The sole provision pertaining to the identification of persons
whose communications are to be intercepted is contained in §
2518(1)(b)(iv), which requires that the application state "the
identity of the person, if known,
committing the offense
and whose communications are to be intercepted." (Emphasis
supplied.) This statutory language would plainly seem to require
the naming of a specific person in the wiretap application only
when law enforcement officials believe that such an individual is
actually committing one of the offenses specified in 18 U.S.C. §
2516. Since it is undisputed here that Minnie Kahn was not known to
the Government to be engaging in gambling activities at the time
the interception order was sought, the failure to include her name
in the application would thus seem to comport with the literal
language of § 2518(1)(b)(iv).
Moreover, there is no reason to conclude that the omission of
Minnie Kahn's name from the actual wiretap order was in conflict
with any of the provisions of Title III. Section 2518(4)(a)
requires that the order specify "the identity of the person, if
known, whose communications are to be intercepted." Since the judge
who prepares the order can only be expected to learn of the target
individual's identity through reference to the original
application, it can hardly be inferred that this statutory language
imposes any broader requirement than the identification provisions
of § 2518(1)(b)(iv).
In effect, the Court of Appeals read these provisions of § 2518
as if they required that the application and order identify "all
persons, known or discoverable, who are committing the offense and
whose communications are to be intercepted." But that is simply not
what
Page 415 U. S. 153
the statute says: identification is required only of those
"known" to be "committing the offense." Had Congress wished to
engraft a separate requirement of "discoverability" onto the
provisions of Title III, it surely would have done so in language
plainer than that now embodied in § 2518.
Moreover, the Court of Appeals' interpretation of § 2518 would
have a broad impact. A requirement that the Government fully
investigate the possibility that any likely user of a telephone was
engaging in criminal activities before applying for an interception
order would greatly subvert the effectiveness of the law
enforcement mechanism that Congress constructed. In the case at
hand, the Court of Appeals' holding would require the complete
investigation not only of Minnie Kahn, but also of the two
teen-aged Kahn children and other frequenters of the Kahn residence
before a wiretap order could be applied for. If the telephone were
in a store or an office, the Government might well be required to
investigate everyone who had access to it -- in some cases,
literally hundreds of people -- even though there was no reason to
suspect that any of them were violating any criminal law. It is
thus open to considerable doubt that such a requirement would
ultimately serve the interests of individual privacy. In any event,
the statute as actually drafted contains no intimation of such
total investigative demands. [
Footnote 12]
Page 415 U. S. 154
In arriving at its reading of § 2518, the Court of Appeals
seemed to believe that taking the statute at face value would
result in a wiretap order amounting to a "virtual general warrant,"
since the law enforcement authorities would be authorized to
intercept communications of anyone who talked on the named
telephone line. 471 F.2d at 197. But neither the statute nor the
wiretap order in this case would allow the federal agents such
total unfettered discretion. By its own terms, the wiretap order in
this case conferred authority to intercept only communications
"concerning the above-described [gambling] offenses." [
Footnote 13] Moreover, in accord
with the statute, the order required the agents to execute the
warrant in such a manner as to minimize the interception of any
innocent conversations. [
Footnote 14] And the order limited the length of any
possible interception to 15 days, while requiring status reports as
to the progress of the wiretap to be submitted to the District
Judge every five days, so that any possible abuses might be quickly
discovered and halted. Thus, the failure of the order to specify
that Mrs. Kahn's conversations might be the subject of interception
hardly left the executing agents free to seize at will every
communication
Page 415 U. S. 155
that came over the wire -- and there is no indication that such
abuses took place in this case. [
Footnote 15]
We conclude, therefore, that Title III requires the naming of a
person in the application or interception order only when the law
enforcement authorities have probable cause to believe that that
individual is "committing the offense" for which the wiretap is
sought. Since it is undisputed that the Government had no reason to
suspect Minnie Kahn of complicity in the gambling business before
the wire interceptions here began, it follows that, under the
statute, she was among the class of persons "as yet unknown"
covered by Judge Campbell's order.
The remaining question is whether, under the actual language of
Judge Campell's order, only those intercepted conversations to
which Irving Kahn himself was
Page 415 U. S. 156
a party are admissible in evidence at the Kahns' trial, as the
Court of Appeals concluded. The effect of such an interpretation of
the wiretap order in this case would be to exclude from evidence
the intercepted conversations between Minnie Kahn and the "known
gambling figure" concerning betting information. Again, we are
unable to read either the District Court order or the underlying
provisions of Title III as requiring such a result.
The order signed by Judge Campbell in this case authorized the
Government to "intercept wire communications of Irving Kahn and
others as yet unknown . . . to and from two telephones, subscribed
to by Irving Kahn." The order does not refer to conversations
between Irving Kahn and others; rather, it describes
"communications of Irving Kahn and others as yet unknown" to and
from the target telephones. To read this language as requiring that
Irving Kahn be a party to every intercepted conversation would not
only involve a substantial feat of verbal gymnastics, but would
also render the phrase "and others as yet unknown" quite redundant,
since Kahn perforce could not communicate except with others.
Moreover, the interpretation of the wiretap authorization
adopted by the Court of Appeals is at odds with one of the stated
purposes of Judge Campbell's order. The District Judge specifically
found that the wiretap was needed to "reveal the identities of
[Irving Kahn's] confederates, their places of operation, and the
nature of the conspiracy involved." It is evident that such
information might be revealed in conversations to which Irving Kahn
was not a party. For example, a confederate might call in Kahn's
absence, and leave either a name, a return telephone number, or an
incriminating message. Or, one of Kahn's associates might
himself
Page 415 U. S. 157
come to the family home and employ the target telephones to
conduct the gambling business. [
Footnote 16] It would be difficult under any
circumstances to believe that a District Judge meant such
intercepted conversations to be inadmissible at any future trial;
given the specific language employed by Judge Campbell in the
wiretap order today before us, such a conclusion is simply
untenable.
Nothing in Title III requires that, despite the order's
language, it must be read to exclude Minnie Kahn's communications.
As already noted, 18 U.S.C. §§ 2518(1)(b)(iv) and 2518(4)(a)
require identification of the person committing the offense only
"if known." The clear implication of this language is that, when
there is probable cause to believe that a particular telephone is
being used to commit an offense but no particular person is
identifiable, a wire interception order may, nevertheless, properly
issue under the statute. [
Footnote 17] It necessarily follows that Congress could
not have intended that the authority to intercept must be limited
to those conversations between a party named in the order and
others, since, at least in some cases, the order might not name any
specific party at all. [
Footnote
18]
Page 415 U. S. 158
For these reasons, we hold that the Court of Appeals was in
error when it interpreted the phrase "others as yet unknown" so as
to exclude conversations involving Minnie Kahn from the purview of
the wiretap order. We further hold that neither the language of
Judge Campbell's order nor that of Title III requires the
suppression of legally intercepted conversations to which Irving
Kahn was not himself a party.
Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded to that court for further proceedings
consistent with this opinion.
It is so ordered.
[
Footnote 1]
The affiant, a special agent of the Federal Bureau of
Investigation, provided detailed information about Kahn's alleged
gambling activities: this information was derived from the personal
observations of three unnamed sources, whose past reliability in
gambling investigations was described by the affiant. In addition,
the information was corroborated by telephone company records
showing calls on Kahn's telephones to and from a known gambling
figure in another State.
The Government's application and the accompanying affidavit also
claimed that one Jake Jacobs was using a telephone at his private
residence to conduct an illegal gambling business. The subsequent
order of the District Court authorizing wire interceptions also
covered Jacobs' phone. Any communications intercepted over the
Jacobs telephone, however, play no role in the issues now before
us.
[
Footnote 2]
Title 18 U.S.C. § 2518 provides in pertinent part: .
"(1) Each application for an order authorizing or approving the
interception of a wire or oral communication shall be made in
writing upon oath or affirmation to a judge of competent
jurisdiction and shall state the applicant's authority to make such
application. Each application shall include the following
information:"
"
* * * *"
"(b) a full and complete statement of the facts and
circumstances relied upon by the applicant, to justify his belief
that an order should be issued, including (i) details as to the
particular offense that has been, is being, or is about to be
committed, (ii) a particular description of the nature and location
of the facilities from which or the place where the communication
is to be intercepted, (iii) a particular description of the type of
communications sought to be intercepted, (iv) the identity of the
person, if known, committing the offense and whose communications
are to be intercepted,"
"(3) Upon such application, the judge may enter an ex parte
order, as requested or as modified, authorizing or approving
interception of wire or oral communications within the territorial
jurisdiction of the court in which the judge is sitting, if the
judge determines on the basis of the facts submitted by the
applicant that -- "
"(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this chapter;"
"(b) there is probable cause for belief that particular
communications concerning that offense will be obtained through
such interception;"
"(c) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
to be too dangerous;"
"(d) there is probable cause for belief that the facilities from
which, or the place where, the wire or oral communications are to
be intercepted are being used, or are about to be used, in
connection with the commission of such offense, or are leased to,
listed in the name of, or commonly used by such person."
"(4) Each order authorizing or approving the interception of any
wire or oral communication shall specify --"
"(a) the identity of the person, if known, whose communications
are to be intercepted;"
"(b) the nature and location of the communications facilities as
to which, or the place where, authority to intercept is
granted;"
"(c) a particular description of the type of communication
sought to be intercepted, and a statement of the particular offense
to which it relates;"
"(d) the identity of the agency authorized to intercept the
communications, and of the person authorizing the application;
and"
"(e) the period of time during which such interception is
authorized, including a statement as to whether or not the
interception shall automatically terminate when the described
communication has been first obtained."
[
Footnote 3]
Title 18 U.S.C. § 2518(6) provides in pertinent part:
"Whenever an order authorizing interception is entered pursuant
to this chapter, the order may require reports to be made to the
judge who issued the order showing what progress has been made
toward achievement of the authorized objective and the need for
continued interception. Such reports shall be made at such
intervals as the judge may require."
[
Footnote 4]
The Travel Act, 18 U.S.C. § 1952, provides:
"(a) Whoever travels in interstate or foreign commerce or uses
any facility in interstate or foreign commerce, including the mail,
with intent to --"
"(1) distribute the proceeds of any unlawful activity; or"
"(2) commit any crime of violence to further any unlawful
activity; or"
"(3) otherwise promote, manage, establish, carry on, or
facilitate the promotion, management, establishment, or carrying
on, of any unlawful activity,"
"and thereafter performs or attempts to perform any of the acts
specified in subparagraphs (1), (2), and (3), shall be fined not
more than $10,000 or imprisoned for not more than five years, or
both."
"(b) As used in this section 'unlawful activity' means (1) any
business enterprise involving gambling, liquor on which the Federal
excise tax has not been paid, narcotics, or controlled substances
(as defined in section 102(6) of the Controlled Substances Act) or
prostitution offenses in violation of the laws of the State in
which they are committed or of the United States, or (2) extortion,
bribery, or arson in violation of the laws of the State in which
committed or of the United States."
"(c) Investigations of violations under this section involving
liquor shall be conducted under the supervision of the Secretary of
the Treasury."
The indictment in this case stated that the alleged gambling
activities attributed to the Kahns were in violation of
Ill.Rev.Stat., c. 38, §§ 21(a), (2), and (10).
[
Footnote 5]
Title 18 U.S.C. § 2517(4) provides that:
"No otherwise privileged wire or oral communication intercepted
in accordance with, or in violation of, the provisions of this
chapter shall lose its privileged character."
[
Footnote 6]
Title 18 U.S.C. § 2518(10)(b) gives the United States the right
to take an interlocutory appeal from an order granting a motion to
suppress intercepted wire communications. In addition, 18 U.S.C. §
3731 generally provides for appeals by the Government from pretrial
orders suppressing evidence.
[
Footnote 7]
The Kahns' cross-petition for certiorari, raising the marital
privilege argument, was denied. 411 U.S. 986.
[
Footnote 8]
Such issues are currently
sub judice in
United
States v. Giordano, No. 72-1057, and
United States v.
Chavez, No. 72-1319.
[
Footnote 9]
In relevant part, 18 U.S.C. § 2518(5) requires:
"Every order and extension thereof shall contain a provision
that the authorization to intercept . . . shall be conducted in
such a way as to minimize the interception of communications not
otherwise subject to interception under this chapter. . . ."
[
Footnote 10]
See Omnibus Crime Control and Safe Streets Act of 1968,
Pub.L. 90-351, Tit. III, §§ 801(b) and (d), 82 Stat. 211; S.Rep.
No. 1097, 90th Cong., 2d Sess., 66.
[
Footnote 11]
See § 801(c) of the above Act, 82 Stat. 211; S.Rep. No.
1097,
supra at 66-76.
[
Footnote 12]
It is true, as the Court of Appeals noted, that 18 U.S.C. §§
2518(1)(c) and 2518(3)(c) require the application to demonstrate,
and the judge authorizing any wire interception to find, that
"normal investigative procedures" have either failed or appear
unlikely to succeed. This language, however, is simply designed to
assure that wiretapping is not resorted to in situations where
traditional investigative techniques would suffice to expose the
crime.
See generally S.Rep. No. 1097, 90th Cong., 2d
Sess., 101. Once the necessity for the interception has been shown,
§§ 2518(1)(c) and 2518(3)(c) do not impose an additional
requirement that the Government investigate all persons who may be
using the subject telephone in order to determine their possible
complicity.
[
Footnote 13]
Title 18 U.S.C. § 2518(4)(c) requires that an order authorizing
wire interceptions contain "a particular description of the type of
communication sought to be intercepted, and a statement of the
particular offense to which it relates."
See also 18
U.S.C. § 2518(1)(b)(iii), imposing a similar requirement as to the
application for a wiretap order.
But cf. 18 U.S.C. § 2517(5), providing that, under
certain circumstances, intercepted conversations involving crimes
other than those identified in the order may be used in
evidence.
[
Footnote 14]
See n 9,
supra.
[
Footnote 15]
The fallacy in the Court of Appeals' "general warrant" approach
may be illustrated by examination of an analogous conventional
search and seizure. If a warrant had been issued, upon a showing of
probable cause, to search the Kahn residence for physical records
of gambling operations, there could be no question that a
subsequent seizure of such records bearing Minnie Kahn's
handwriting would be fully lawful, despite the fact that she had
not been identified in the warrant or independently investigated.
In fact, as long as the property to be seized is described with
sufficient specificity, even a warrant failing to name the owner of
the premises at which a search is directed, while not the best
practice, has been held to pass muster under the Fourth Amendment.
See Haner v. United States, 398 F.2d 91, 99 (CA8);
Miller v. Sisler, 353 F.2d 424, 428 (CA8) (dictum);
Dixon v. United States, 211 F.2d 547, 549 (CA5);
Carney v. United States, 79 F.2d 821, 822 (CA6);
United States v. Fitzmaurice, 45 F.2d 133, 135 (CA2) (L.
Hand, J.); Mascolo, Specificity Requirements for Warrants under the
Fourth Amendment: Defining the Zone of Privacy, 73 Dick.L.Rev. 1,
21.
See also United States v. Fiorella, 468 F.2d 688, 691
(CA2) ("The Fourth Amendment requires a warrant to describe only
the place to be searched, and the persons or things to be
seized,' not the persons from whom things will be
seized").
[
Footnote 16]
By referring to the conversations of Kahn and others "to and
from" the two telephones, the order clearly envisioned that the
"others" might be either receiving or transmitting gambling
information from the two Kahn telephones. Yet it could hardly be
expected in these instances that Irving Kahn would always be the
person on the other end of the line, especially since either
bettors or Kahn's confederates in the gambling business might often
have occasion to dial the telephone numbers in issue.
[
Footnote 17]
Such a situation might obtain if a bettor revealed to law
enforcement authorities that he had repeatedly called a certain
telephone number in order to place wagers, but had never been told
the name of the person at the other end of the line.
[
Footnote 18]
In fact, the Senate rejected an amendment to Title III that
would have provided that only the conversations of those
specifically named in the wiretap order could be admitted into
evidence. 114 Cong.Rec. 14718 (1968) (Amendment 735).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL concur, dissenting.
As a result of our decision in
Berger v. New York,
388 U. S. 41, a
wiretap -- long considered to be a special kind of a "search" and
"seizure" -- was brought under the reach of the Fourth Amendment.
[
Footnote 2/1] The dominant feature
of that Amendment was the command that "no Warrants shall issue,
but upon probable cause" -- a requirement which Congress wrote into
18 U.S.C. § 2518. [
Footnote
2/2]
Page 415 U. S. 159
By § 2518(3), the judge issuing the warrant must be satisfied by
the facts submitted by the police that there is "probable cause"
for belief that "an individual" is committing the described
offense, § 2518(3)(a); that there is "probable cause" for belief
that particular communications concerning the offense will be
attained by interception, § 2518(3)(b); that normal investigative
procedures have been tried but have failed or reasonably appear to
be unlikely to succeed or to be too dangerous, § 2518(3)(c), and
that there is "probable cause" for belief that named facilities are
being used or are about to be used in the commission of the named
offense, § 2518(3)(d). The Act goes on to state that the judge must
specify "the identity of the person, if known, whose communications
are to be intercepted." § 2518(4)(a).
The judge in the present case described the telephones
Page 415 U. S. 160
to be tapped and found probable cause to believe "Irving Kahn
and others as yet unknown" were connected with the commission of
specified interstate crimes. The judicial order authorized special
federal agents to "intercept wire communications of Irving Kahn and
others as yet unknown" concerning these crimes.
The agents intercepted incriminating calls made by Irving Kahn
and also incriminating calls made by his wife, Minnie Kahn. The
District Court on motions to suppress disallowed use of the
conversations of Minnie Kahn; and the Court of Appeals agreed,
saying that the probable cause order made it necessary for the
Government to meet two requirements: (1) "that Irving Kahn be a
party to the conversations, and (2) that his conversations
intercepted be with
others as yet unknown,'" 471 F.2d 191, 195.
That seems to be a common sense interpretation, for Irving Kahn,
when using a phone, talks not to himself, but with "others" who at
the time were "unknown." To construe the warrant as allowing a
search of the conversations of anyone putting in calls on the Kahn
telephone amounts, as the Court of Appeals said, "to a virtual
general warrant in violation" of Mrs. Kahn's rights, id.
at 197.
Whether the search would satisfy the Fourth Amendment is not
before us, the decision below being based solely on the Act of
Congress. Seizure of the words of Mrs. Kahn is not specified in the
warrant. The narrow scope of the search that was authorized was
limited to Mr. Kahn and those whom he called or who called him.
Congress, in passing the present Act, legislated, of course, in
light of the general warrant. The general warrant historically
included a license to search for everything in a named place as
well as a license to search all and any places in the discretion of
the officers.
Page 415 U. S. 161
Frisbie v. Butler, 1 Kirby 213 (Conn.); [
Footnote 2/3] Quincy's Mass. Rep.
1761-1772, App. I.
In light of the prejudice against general warrants which I
believe Congress shared, [
Footnote
2/4] I would not allow Mrs.
Page 415 U. S. 162
Kahn's conversations to be impliedly covered by the warrant, for
to do so allows a search of the entire list of outgoing and
incoming calls to the Kahn telephones, even though no showing of
probable cause had been made concerning any member of the household
other than Mr. Kahn.
I cannot believe that Congress sanctioned that practice.
In the first place, though the agents just heard Mrs. Kahn using
the phone on March 21 and though they continued their surveillance
until March 25, they took no steps to broaden the warrant to
include Mrs. Kahn. [
Footnote
2/5]
Page 415 U. S. 163
There was time [
Footnote 2/6] to
obtain a warrant concerning Mrs. Kahn. I assume that one could have
been obtained between March 21 and March 25. Then a judge would
have decided the particularity of the search of the Kahn
household.
Under today's decision, a wiretap warrant apparently need
specify but one name and a national dragnet becomes operative.
Members of the family of the suspect, visitors in his home,
doctors, ministers, merchants, teachers, attorneys, and everyone
having any possible connection with the Kahn household are caught
up in this web.
I would affirm the judgment below.
[
Footnote 2/1]
Fourth Amendment:
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized."
[
Footnote 2/2]
Title 18 U.S.C. § 2518 provides in pertinent part:
"(1) Each application for an order authorizing or approving the
interception of a wire or oral communication shall be made in
writing upon oath or affirmation to a judge of competent
jurisdiction and shall state the applicant's authority to make such
application. Each application shall include the following
information:"
"
* * * *"
"(b) a full and complete statement of the facts and
circumstances relied upon by the applicant, to justify his belief
that an order should be issued, including . . . (iv) the identity
of the person, if known, committing the offense and whose
communications are to be intercepted;"
"
* * * *"
"(3) Upon such application the judge may enter an
ex
parte order, as requested or as modified, authorizing or
approving interception of wire or oral communications within the
territorial jurisdiction of the court in which the judge is
sitting, if the judge determines on the basis of the facts
submitted by the applicant that --"
"
* * * *"
"(c) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or
to be too dangerous;"
"
* * * *"
"(4) Each order authorizing or approving the interception of any
wire or oral communication shall specify --"
"(a) the identity of the person, if known, whose communications
are to be intercepted."
[
Footnote 2/3]
The warrant in the
Frisbie case read in relevant
part:
"[Y]ou are commanded forthwith to search all suspected places
and persons that the complainant thinks proper, to find his lost
pork, and to cause the same, and the person with whom it shall be
found, or suspected to have taken the same, and have him to appear
before some proper authority, to be examined according to law."
1 Kirby 213-214.
The Court ruled:
"With regard to the warrant -- Although it is the duty of a
justice of the peace granting a search warrant (in doing which he
acts judicially) to limit the search to such particular place or
places, as he, from the circumstances, shall judge there is reason
to suspect; and the arrest to such person or persons as the goods
shall be found with: and the warrant in the present case, being
general, to search all places, and arrest all persons, the
complainant should suspect, is clearly illegal;"
id. at 215.
[
Footnote 2/4]
The explicit requirements of the wiretapping provisions of Title
III of the Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. § 2510 e seq., and their legislative history manifest a
congressional effort to prevent law enforcement agents from
proceeding by way of general search warrants. Section 2518(4)(a),
of course, requires that a wiretap authorization order identify the
person, if known, whose communications are to be intercepted.
Sections 2518(4)(b) and (e) require that the order also specify the
nature and location of the communications facilities as to which,
or the place where, authority to intercept is granted, and also
particularly describe the type of communication to be intercepted
and the particular offense to which it relates. Congress also
provided that no order
"may authorize or approve the interception of any wire or oral
communication for any period longer than is necessary to achieve
the objective of the authorization."
§ 2518(5). An authorization order, moreover, must specify that
the electronic surveillance "shall be conducted in such a way as to
minimize the interception of communications not otherwise subject
to interception under this chapter."
Ibid.
Before a wiretap order can issue, Title III also demands that
law enforcement officers applying for the order provide the judge
with information describing the offense, the facility, the type of
communication, and the identity of the person, if known, committing
the offense and whose communications are to be intercepted, §
2518(1)(b), because, in the view of Congress, "[e]ach of these
requirements reflects the constitutional command of
particularization." S.Rep. No. 1097, 90th Cong., 2d Sess., 101.
Furthermore, § 2518(3) requires the judge, before issuing a wiretap
order, to find that there is probable cause to believe that an
individual is involved with a particular offense, that particular
communications concerning that offense will be intercepted, and
that specific facilities are being used or are about to be used in
connection with the commission of such offense, or are leased to,
listed to, or commonly used by the individual. Congress inserted
these provisions because it felt that, with them,
"the order will link up specific person, specific offense, and
specific place. Together, they are intended to meet the test of the
Constitution that electronic surveillance techniques be used only
under the most precise and discriminate circumstances, which fully
comply with the requirement of particularity."
S.Rep. No. 1097,
supra, at 102.
See also id. at 74-75; 114 Cong.Rec. 14712, 14750
(remarks of Sen. McClellan);
id. at 14728 (Sen. Tydings);
id. at 14715 (Sen. Tower);
id. at 14763 (Sen.
Percy);
id. at 14748 (Sen. Mundt).
[
Footnote 2/5]
If the statement made by Mrs. Kahn on the telephone March 21 was
incriminating, there would be a question whether it could be the
basis for obtaining a broadening of the warrant to include her
without violating
Silverthorne Lumber Co. v. United
States, 251 U. S. 385. In
that case, papers had been seized by officers in violation of the
parties' Fourth Amendment rights but used by the officials as a
basis for demanding in proper form that the owners produce the
papers. Mr. Justice Holmes, speaking for the Court, rejected that
procedure, saying:
"The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so acquired
shall not be used before the Court, but that it shall not be used
at all. Of course, this does not mean that the facts thus obtained
become sacred and inaccessible. If knowledge of them is gained from
an independent source, they may be proved like any others, but the
knowledge gained by the Government's own wrong cannot be used by it
in the way proposed."
Id. at
251 U. S.
392.
[
Footnote 2/6]
Cf. Johnson v. United States, 333 U. S.
10;
United States v. Di Re, 332 U.
S. 581;
Trupiano v. United States, 334 U.
S. 699.