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.
MR. JUSTICE WHITE delivered the opinion of the Court.
Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 82 Stat. 211-225, 18 U.S.C. §§ 2510-2520, prescribes the
procedure for securing judicial authority to intercept wire
communications in the investigation of specified serious offenses.
The Court must here determine whether the Government sufficiently
complied with the required application procedures in this case and
whether, if not, evidence obtained as a result of such
surveillance, under a court order based on the applications, is
admissible at the criminal trial of those whose conversations were
overheard. In particular, we must decide whether the provision of
18 U.S.C.
Page 416 U. S. 508
§ 2516(1) [
Footnote 1]
conferring power on that "Attorney General, or any Assistant
Attorney General specially designated by the Attorney General" to
"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 permits the Attorney General's
Executive Assistant to validly authorize a wiretap application to
be made. We conclude that 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, and that 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 one of the statutorily designated officials must be
suppressed under 18 U.S.C. § 2515 upon a motion properly made under
18 U.S.C. § 2518(10)(a). Accordingly, we affirm the judgment of the
Court of Appeals.
I
In the course of an initial investigation of suspected narcotics
dealings on the part of respondent Giordano, it developed that
Giordano himself sold narcotics to an undercover agent on October
5, 1970, and also told an informant to call a specified number when
interested in transacting narcotics business. Based on this and
other information, Francis Brocato, an Assistant United States
Attorney, on October 16, 1970, submitted an application to the
Chief Judge of the District of Maryland for an order permitting
interception of the communications of Giordano, and of others as
yet unknown, to or from Giordano's telephone. The application
recited that
Page 416 U. S. 509
Assistant Attorney General Will Wilson had been specially
designated by the Attorney General to authorize the application.
Attached to the application was a letter from Will Wilson to
Brocato which stated that Wilson had reviewed Brocato's request for
authorization and had made the necessary probable cause
determinations, and which then purported to authorize Brocato to
proceed with the application to the court. Also attached were
various affidavits of law enforcement officers stating the reasons
and justification for the proposed interception. Upon reviewing the
application, the Chief Judge issued an order on the same day
authorizing the interception
"pursuant to application authorized by the Assistant Attorney
General . . . Will Wilson, who has been specially designated in
this proceeding by the Attorney General . . . to exercise the
powers conferred on him by [18 U.S.C. § 2516]."
On November 6, the same judge extended the intercept authority
based on an application similar in form to the original, but also
including information obtained from the interception already
authorized and carried out and extending the authority to
conversations of additional named individuals calling from or to
Giordano's telephone. The interception was terminated on November
18, when Giordano and the other respondents were arrested and
charged with violations of the narcotics laws.
Suppression hearings followed pretrial notification by the
Government,
see § 2518(9), that it intended to use in
evidence the results of the court-authorized interceptions of
communications on Giordano's telephone. It developed at the
hearings that the applications for interception authority presented
to the District Court had inaccurately described the official who
had authorized the applications, and that neither the initial
application for the October 16 order nor the application for
the
Page 416 U. S. 510
November 6 extension order had been approved and authorized by
Assistant Attorney General Will Wilson, as the applications had
indicated. An affidavit of the Executive Assistant to the Attorney
General divulged that he, the Executive Assistant, had reviewed the
request for authorization to apply for the initial order, had
concluded, from his "knowledge of the Attorney General's actions on
previous cases, that he would approve the request if submitted to
him," and, because the Attorney General was then on a trip away
from Washington, D.C., and pursuant to authorization by the
Attorney General for him to do so in such circumstances, had
approved the request and caused the Attorney General's initials to
be placed on a memorandum to Wilson instructing him to authorize
Brocato to proceed. The affidavit also stated that the Attorney
General himself had approved the November 6 request for extension,
and had initialed the memorandum to Wilson designating him to
authorize Brocato to make application for an extension order. It
was also revealed that, although the applications recited that they
had been authorized by Will Wilson, he had not himself reviewed
Brocato's applications, and that his action was, at best, only
formal authorization to Brocato. Furthermore, it became apparent
that Wilson did not himself sign either of the letters bearing his
name and accompanying the applications to the District Court.
Instead, it appeared that someone in Wilson's office had affixed
his signature after the signing of the letters had been authorized
by a Deputy Assistant Attorney General in the Criminal Division who
had, in turn, acted after the approval of the request for
authorization had occurred in and had been received from the Office
of the Attorney General.
The District Court sustained the motions to suppress on the
ground that the officer in the Justice Department
Page 416 U. S. 511
approving each application had been misidentified in the
applications and intercept orders, in violation of 18 U.S.C. §§
2518(1)(a) and (4)(d),
United States v.
Focarile, 340 F.
Supp. 1033, 1060 (Md.1972). On the Government's pretrial appeal
under 18 U.S.C. § 3731, the Court of Appeals affirmed on the
different ground that the authorization of the October 16 wiretap
application by the Attorney General's Executive Assistant violated
§ 2516(1) of the statute and struck at "the very heart" of Title
III, thereby requiring suppression of the wiretap and derivative
evidence under §§ 2515 and 2518(10)(a)(i) and (ii). [
Footnote 2] 469 F.2d 522, 531 (CA4 1972). We
granted certiorari to resolve the conflict with decisions of the
Court of Appeals for the Second Circuit [
Footnote 3]
Page 416 U. S. 512
with respect to the administration of the circumscribed
authority Congress has granted in Title III for the use of
wiretapping and wiretap evidence by law enforcement officers. 411
U.S. 905.
II
The United States contends that the authorization of intercept
applications by the Attorney General's Executive Assistant was not
inconsistent with the statute, and that, even if it were, there
being no constitutional violation, the wiretap and derivative
evidence should not have been ordered suppressed. We disagree with
both contentions. [
Footnote
4]
Turning first to whether the statute permits the authorization
of wiretap applications by the Attorney General's Executive
Assistant, we begin with the language
Page 416 U. S. 513
of § 2516(1), which provides that "[t]he Attorney General, or
any Assistant Attorney General specially designated by the Attorney
General, may authorize" an application for intercept authority.
Plainly enough, the Executive Assistant is neither the Attorney
General nor a specially designated Assistant Attorney General; but
the United States argues that 28 U.S.C. § 509, [
Footnote 5] deriving from the Reorganization Acts
of 1949 and 1950, vests all functions of the Department of Justice,
with some exceptions, in the Attorney General, and that Congress
characteristically assigns newly created duties to the Attorney
General, rather than to the Department of Justice, thus making
essential the provision for delegation appearing in 28 U.S.C. §
510:
"The Attorney General may from time to time make such provisions
as he considers appropriate authorizing the performance by any
other officer, employee, or agency of the Department of Justice of
any function of the Attorney General."
It is therefore argued that merely vesting a duty in the
Attorney General, as it is said Congress did in § 2516(1), evinces
no intention whatsoever to preclude delegation to other officers in
the Department of Justice, including those on the Attorney
General's own staff.
Page 416 U. S. 514
As a general proposition, the argument is unexceptionable. But
here the matter of delegation is expressly addressed by § 2516, and
the power of the Attorney General in this respect is specifically
limited to delegating his authority to "any Assistant Attorney
General specially designated by the Attorney General." Despite §
510, Congress does not always contemplate that the duties assigned
to the Attorney General may be freely delegated. Under the Civil
Rights Act of 1968, for instance, certain prosecutions are
authorized only on the certification of the Attorney General or the
Deputy Attorney General, "which function of certification may not
be delegated." 18 U.S.C. § 245(a)(1). Equally precise language
forbidding delegation was not employed in the legislation before
us; but we think § 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.
This interpretation of the statute is also strongly supported by
its purpose and legislative history.
The purpose of the legislation, which was passed in 1968, was
effectively to prohibit, on the pain of criminal and civil
penalties, [
Footnote 6] all
interceptions of oral and wire communications except those
specifically provided for in the Act, most notably those
interceptions permitted to law enforcement officers when authorized
by court order in connection with the investigation of the serious
crimes listed in § 2516. Judicial wiretap orders must be preceded
by applications containing prescribed information, § 2518(1). The
judge must make certain findings before authorizing interceptions,
including the existence of probable cause, § 2518(3). The orders
themselves
Page 416 U. S. 515
must particularize the extent and nature of the interceptions
that they authorize, § 2518(4), and they expire within a specified
time unless expressly extended by a judge based on further
application by enforcement officials, § 2518(5). Judicial
supervision of the progress of the interception is provided for, §
2518(6), as is official control of the custody of any recordings or
tapes produced by the interceptions carried out pursuant to the
order, § 2518(8). The Act also contains provisions specifying the
circumstances and procedures under and by which aggrieved persons
may seek and obtain orders for the suppression of intercepted wire
or oral communication sought to be used in evidence by the
Government. § 2518(10)(a).
The Act is not as clear, in some respects, as it might be, but
it is at once apparent that it not only limits the crimes for which
intercept authority may be obtained, but also imposes important
preconditions to obtaining any intercept authority at all. Congress
legislated in considerable detail in providing for applications and
orders authorizing wiretapping, and evinced the clear intent to
make doubly sure that the statutory authority be used with
restraint and only where the circumstances warrant the
surreptitious interception of wire and oral communications. These
procedures were not to be routinely employed as the initial step in
criminal investigation. Rather, the applicant must state and the
court must find that normal investigative procedures have been
tried and failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous. §§ 2518(1)(c) and (3)(c). The Act
plainly calls for the prior, informed judgment of enforcement
officers desiring court approval for intercept authority, and
investigative personnel may not themselves ask a judge for
authority to wiretap or eavesdrop. The mature judgment of a
particular,
Page 416 U. S. 516
responsible Department of Justice official is interposed as a
critical precondition to any judicial order.
The legislative history of the Act supports this view. As we
have indicated, the Act was passed in 1968, but the provision of §
2516 requiring approval of applications by the Attorney General or
a designated Assistant Attorney General dates from 1961, when a
predecessor bill was being considered in the 87th Congress. Section
4(b) of that bill, S. 1495, which was also aimed at prohibiting all
but designated official interception, initially provided that the
"Attorney General, or any officer of the Department of Justice or
any United States Attorney specially designated by the Attorney
General, may authorize any investigative or law enforcement officer
of the United States or any Federal agency to apply to a judge" for
a wire interception order. Hearings on Wiretapping and
Eavesdropping Legislation before the Subcommittee on Constitutional
Rights of the Senate Committee on the Judiciary, 87th Cong., 1st
Sess., 5 (1961). Under that phraseology, the authority was centered
in the Attorney General, but he could empower any officer of the
Department of Justice, including United States Attorneys and the
Executive Assistant, to authorize applications for intercept
orders. At hearings on the bill, the Assistant Attorney General in
charge of the Criminal Division stated the views of the Department
of Justice, and the Department later officially proposed, that the
authority to approve applications be substantially narrowed so that
the Attorney General could delegate his authority only to an
Assistant Attorney General. The testimony was:
"This is the approach of S. 1495, with which the Department of
Justice is in general agreement. The bill makes wiretapping a crime
unless specifically authorized by a Federal judge in situations
involving
Page 416 U. S. 517
specified crimes. As I understand the bill, the application for
a court order could be made only by the authority of the Attorney
General or an officer of the Department of Justice or U.S. Attorney
authorized by him. I suggest that the bill should confine the power
to authorize an application for a court order to the Attorney
General and ally assistant Attorney General whom he may designate.
This would give greater assurance of a responsible executive
determination of the need and justifiability of each
interception."
Id. at 356. The official proposal was that § 4(b) be
changed to provide that the
"Attorney General, or any Assistant Attorney General of the
Department of Justice specially designated by the Attorney General,
may authorize"
a wiretap application.
Id. at 372.
S. 1495 was not enacted, but its provision limiting those who
could approve applications for court orders survived, and was
included in almost identical form in later legislative proposals,
including the bill that became Title III of the Act now before us.
[
Footnote 7] In the course
of
Page 416 U. S. 518
testimony before a House Committee in 1967, the draftsman of the
bill containing the basic outline of Title III engaged in the
following colloquy:
"The CHAIRMAN. . . . About the origin of the application, as I
understand it, your bill provides it must be originated by the
Attorney General or an Assistant Attorney General. Am I correct in
that regard?"
"Professor BLAKEY. Yes, you are, Mr. Chairman."
"The CHAIRMAN. The application must be made by the Attorney
General or an Assistant Attorney General."
"Professor BLAKEY. If I am not mistaken, the present procedure
is before any wiretapping or electronic equipment is used now, it
is generally approved at that level anyway, Mr. Chairman, and I
would not want this equipment used without high level responsible
officials passing on it. It may very well be that, in some number
of cases there will not be time to get the Attorney General to
approve it. I think we are going to have just [
sic] to let
those cases go, and that, if this equipment is to be used, it ought
to be approved by the highest level in the
Page 416 U. S. 519
Department of Justice. If we cannot make certain cases, that is
going to have to be the price we will have to pay."
Hearings on Anti-Crime Program before Subcommittee No. 5 of the
House Committee on the Judiciary, 90th Cong., 1st Sess., 1379
(1967). [
Footnote 8]
Page 416 U. S. 520
As it turned out, the House Judiciary Committee did not report
out a wiretap bill, but the House did pass H.R. 5037, entitled the
"Law Enforcement and Criminal Justice Assistance Act of 1967," 113
Cong.Rec. 21861 (Aug. 8, 1967). The Senate amended that bill by
adding to it Title III, which, in turn, essentially reflected the
provisions of S. 917, which had been favorably reported by the
Senate Judiciary Committee and which contained the Committee's own
proposals with respect to the interception of oral and wire
communications. The report on the bill stated:
"Section 2516 of the new chapter authorizes the interception of
particular wire or oral communication under court order pursuant to
the authorization of the appropriate Federal, State, or local
prosecuting officer."
"Paragraph (1) . . . centralizes in a publicly responsible
official subject to the political process the formulation of law
enforcement policy on the use of electronic surveillance
techniques. Centralization will avoid the possibility that
divergent practices might develop. Should abuses occur, the lines
of responsibility lead to an identifiable person. This provision,
in itself, should go a long way toward guaranteeing that no abuses
will happen."
S.Rep. No. 1097, 90th Cong., 2d Sess., 96-97 (1968). This report
is particularly significant in that it not only recognizes that the
authority to apply for court orders is to be narrowly confined, but
also declares that it is to be limited to those responsive to the
political process, a category to which the Executive Assistant to
the Attorney General obviously does not belong. [
Footnote 9]
Page 416 U. S. 521
The Senate passed H.R. 5037, with the amendments tracking the
provisions of S. 917, on May 23, 1968, as the Omnibus Crime Control
and Safe Street Act of 1968, 114 Cong.Rec. 14798 and 14889. During
the proceedings leading to the passage of the bill, emphasis was
again placed on § 2516. That the Attorney General had the exclusive
authority to approve or provide for the approval of wiretap
applications was reiterated, and it was made clear that, as the
bill was drafted, no United States Attorney would have or could be
given the authority to apply for an intercept order without the
advance approval of a senior officer in the Department. [
Footnote 10]
Page 416 U. S. 522
There was no congressional attempt, however, to extend that
authority beyond the Attorney General or his Assistant Attorney
General designate.
The Government insists that, because § 2516(2) provides for a
wider dispersal of authority among state officers to approve
wiretap applications and leaves the matter of delegation up to
state law, [
Footnote 11] it
is inappropriate
Page 416 U. S. 523
to confine the authority so narrowly on the federal level. But
it is apparent that Congress desired to centralize and limit this
authority where it was feasible to do so, a desire easily
implemented in the federal establishment by confining the authority
to approve wiretap applications to the Attorney General or a
designated Assistant Attorney General. To us, it appears wholly at
odds with the scheme and history of the Act to construe § 2516(1)
to permit the Attorney General to delegate his authority at will,
whether it be to his Executive Assistant or to any officer in the
Department other than an Assistant Attorney General. [
Footnote 12]
Page 416 U. S. 524
III
We also reject the Government's contention that, even if the
approval by the Attorney General's Executive Assistant of the
October 16 application did not comply with the statutory
requirements, the evidence obtained from the interceptions should
not have been suppressed. The issue does not turn on the judicially
fashioned exclusionary rule aimed at deterring violations of Fourth
Amendment rights, but upon the provisions of Title III; and, in our
view, the Court of Appeals correctly suppressed the challenged
wiretap evidence.
Section 2515 provides that no part of the contents of any wire
or oral communication, and no evidence derived therefrom, may be
received at certain proceedings, including trials, "if the
disclosure of that information would be in violation of this
chapter." What disclosures are forbidden, and are subject to
motions to suppress, is, in turn, governed by § 2518(10)(a), which
provides for suppression of evidence on the following grounds:
"(i) the communication was unlawfully intercepted; "
Page 416 U. S. 525
"(ii) the order of authorization or approval under which it was
intercepted is insufficient on its face; or"
"(iii) the interception was not made in conformity with the
order of authorization or approval. [
Footnote 13]"
The Court of Appeals held that the communications the Government
desired to offer in evidence had been "unlawfully intercepted"
within the meaning of paragraph (i), because the October
application had been approved by the Executive Assistant to the
Attorney General, rather than by the Attorney General himself or a
designated Assistant Attorney General. [
Footnote 14] We have already determined that
delegation to the Executive Assistant was indeed contrary to the
statute; but the Government contends that approval by the wrong
official is a statutory violation only and that paragraph (i) must
be construed to reach constitutional, but not statutory,
violations. [
Footnote 15]
The argument is a straightforward one based on the structure of §
2518(10)(a). On the one hand, the unlawful interceptions referred
to in paragraph
Page 416 U. S. 526
(i) must include some constitutional violations. Suppression for
lack of probable cause, for example, is not provided for in so many
words, and must fall within paragraph (i) unless, as is most
unlikely, the statutory suppression procedures were not intended to
reach constitutional violations at all. On the other hand
paragraphs (ii) and (iii) plainly reach some purely statutory
defaults without constitutional overtones, and these omissions
cannot be deemed unlawful interceptions under paragraph (i), else
there would have been no necessity for paragraphs (ii) and (iii) --
or, to put the matter another way, if unlawful interceptions under
paragraph (i) include purely statutory issues, paragraphs (ii) and
(iii) are drained of all meaning, and are surplusage. The
conclusion of the argument is that, if nonconstitutional omissions
reached by paragraphs (ii) and (iii) are not unlawful interceptions
under paragraph (i), then there is no basis for holding that
"unlawful interceptions" include any such statutory matters; the
only purely statutory transgressions warranting suppression are
those falling within paragraphs (ii) and (iii).
The position gains some support from the fact that predecessor
bills specified a fourth ground for suppression -- the lack of
probable cause -- which was omitted in subsequent bills, apparently
on the ground that it was not needed because official interceptions
without probable cause would be unlawful within the meaning of
paragraph (i). [
Footnote 16]
Arguably, the inference is that, since
Page 416 U. S. 527
paragraphs (ii) and (iii) were retained, they must have been
considered "necessary," that is, not covered by paragraph (i).
The argument of the United States has substance, and it does
appear that paragraphs (ii) and (iii) must be deemed to provide
suppression for failure to observe some statutory requirements that
would not render interceptions unlawful under paragraph (i). But it
does not necessarily follow, and we cannot believe, that no
statutory infringements whatsoever are also unlawful interceptions
within the meaning of paragraph (i). The words "unlawfully
intercepted" are themselves not limited to constitutional
violations, and we think Congress intended to require suppression
where there is 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. We have already determined that
Congress intended not only to limit resort to wiretapping to
certain crimes and situations where probable cause is present, but
also to condition the use of intercept procedures upon the judgment
of a senior official in the Department of Justice that the
situation is one of those warranting their use. It is
Page 416 U. S. 528
reasonable to believe that such a precondition would inevitably
foreclose 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.
We are confident 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.
The principal piece of legislative history relative to this
question is S.Rep. No. 1097, 90th Cong., 2d Sess. (1968). The
Government emphasizes that the report expressly states that §
2518(10)(a) "largely reflects existing law," and that there was no
intention to "press the scope of the suppression role beyond
present search and seizure law."
Id. at 96. But the report
also states that the section provides for suppression of evidence
directly or indirectly obtained "in violation of the chapter," and
that the provision
"should serve to guarantee that the standards of the new chapter
will sharply curtail the unlawful interception of wire and oral
communications. [
Footnote
17]"
Moreover, it would not extend existing search
Page 416 U. S. 529
and seizure law for Congress to provide for the suppression of
evidence obtained in violation of explicit statutory prohibitions.
Nardone v. United States, 302 U.
S. 379 (1937);
Nardone v. United States,
308 U. S. 338
(1939). [
Footnote 18]
IV
Even though suppression of the wire communications intercepted
under the October 16, 1970, order is required, the Government
nevertheless contends that communications
Page 416 U. S. 530
intercepted under the November 6 extension order are admissible,
because they are not "evidence derived" from the contents of
communications intercepted under the October 16 order within the
meaning of §§ 2515 and 2518(10)(a). This position is untenable.
Under § 2518, extension orders do not stand on the same footing
as original authorizations, but are provided for separately.
"Extensions of an order may be granted, but only upon
application for an extension made in accordance with subsection (1)
of this section and the court making the findings required by
subsection (3) of this section."
§ 2518(5). Under subsection (1)(e), applications for extensions
must reveal previous applications and orders, and, under (1)(f),
must contain "a statement setting forth the results thus far
obtained from the interception, or a reasonable explanation of the
failure to obtain such results." Based on the application, the
court is required to make the same findings that are required in
connection with the original order; that is, it must be found not
only that there is probable cause in the traditional sense and that
normal investigative procedures are unlikely to succeed, but also
that there is probable cause for believing that particular
communications concerning the offense will be obtained through the
interception and for believing that the facilities or place from
which the wire or oral communications are to be intercepted are
used or will be used in connection with the commission of such
offense or are under lease to the suspect or commonly used by him.
§ 2518(3).
In its November 6 application, the Government sought authority
to intercept the conversations of not only Giordano, who alone was
expressly named in the initial application and order, but of nine
other named persons who were alleged to be involved with Giordano
in narcotics violations. Based on the attached affidavit, it was
alleged that there was probable cause to believe that
Page 416 U. S. 531
communications concerning the offense involved would be
intercepted, particularly those between Giordano and the other
named individuals, as well as those with others as yet unnamed, and
that the telephone listed in the name of Giordano and whose
monitoring was sought to be continued "has been used, and is being
used and will be used, in connection with the commission of the
offenses described." App. 62.
In the affidavit supporting the application, the United States
set out the previous applications and orders, incorporated by
reference, and reasserted the "facts, details and conclusions
contained in [the] affidavits" supporting the prior wiretap
application, and set down in detail the relevant communications
overheard under the existing order, as well as the physical
movements of Giordano observed as the result of an around-the-clock
surveillance that had been conducted by the authorities. App. 6581.
The Government concluded, "[a]fter analyzing the intercepted
conversations to and from [Giordano's telephone] and the results of
BNDD surveillance," that nine listed individuals, some identified
only by aliases, were associated with Giordano as suppliers or
buyers in illegal narcotics trafficking, and that certain other
persons were perhaps connected with the operation in an as yet
undisclosed fashion.
Id. at 79-80. It was also said that
the full scope of Giordano's organization was not yet known.
Id. at 80. Assertedly, Giordano was extremely guarded in
his telephone conversations, "any specific narcotics conversations
he makes are from pay phones" and "[c]onventional surveillance
would be completely ineffective except as an adjunct to electronic
interception."
Id. at 81. The United States accordingly
requested an extension of the interception order for no longer than
a 15-day period.
It is apparent from the foregoing that the communications
intercepted pursuant to the extension order were
Page 416 U. S. 532
evidence derived from the communications invalidly intercepted
pursuant to the initial order. In the first place, the application
sought and the order granted authority to intercept the
communications of various named individuals not mentioned in the
initial order. It is plain from the affidavit submitted that
information about most of these persons was obtained through the
initial illegal interceptions. It is equally plain that the
telephone monitoring and accompanying surveillance were coordinated
operations, necessarily intertwined. As the Government asserted,
the surveillance and conventional investigative techniques "would
be completely ineffective except as an adjunct to electronic
interception." That the extension order and the interceptions under
it were not, in fact, the product of the earlier electronic
surveillance is incredible.
Second, an extension order could validly be granted only upon an
application complying with subsection (1) of § 2518. Subsection
(1)(e) requires that the fact of prior applications and orders be
revealed, and (1)(f) directs that the application set out either
the results obtained under the prior order or an explanation for
the absence of such results. Plainly, the function of § 2518(1)(f)
is to permit the court realistically to appraise the probability
that relevant conversations will be overheard in the future. If,
during the initial period, no communications of the kind that had
been anticipated had been overheard, the Act requires an adequate
explanation for the failure before the necessary findings can be
made as a predicate to an extension order. But here there were
results, and they were set out in great detail. Had they been
omitted, no extension order at all could have been granted; but
with them, there were sufficient facts to warrant the trial court's
finding, in accordance with § 2518(3)(b), of probable cause to
believe that wire communications concerning the offenses involved
"will
Page 416 U. S. 533
be obtained through the interception," App. 83, as well as the
finding complying with § 2518(3)(d) that there was probable cause
to believe that Giordano's telephone
"has been used, is being used, and will be, used in connection
with the commission of the offenses described above, and is
commonly used by Nicholas Giordano . . ."
and nine other named persons.
Ibid.
It is urged in dissent that the information obtained from the
illegal October 16 interception order may be ignored, and that the
remaining evidence submitted in the extension application was
sufficient to support the extension order. But whether or not the
application, without the facts obtained from monitoring Giordano's
telephone, would independently support original wiretap authority,
the Act itself forbids extensions of prior authorizations without
consideration of the results meanwhile obtained. Obviously, those
results were presented, considered, and relied on in this case.
Moreover, as previously noted, the Government itself had stated
that the wire interception was an indispensable factor in its
investigation, and that ordinary surveillance alone would have been
insufficient. In our view, the results of the conversations
overheard under the initial order were essential, both in fact and
in law, to any extension of the intercept authority. Accordingly,
communications intercepted under the extension order are derivative
evidence and must be suppressed. [
Footnote 19] The judgment of the Court of Appeals is
Affirmed.
[For concurring opinion of MR. JUSTICE DOUGLAS,
see
post, p.
416 U. S.
580.]
Page 416 U. S. 534
APPENDIX TO OPINION OF THE COURT
RELEVANT PROVISIONS OF TITLE III, OMNIBUS CRIME
CONTROL AND SAFE STREETS ACT OF 1968,
18 U.S.C. §§ 2510-2520
§ 2511. Interception and disclosure of wire or oral
communications prohibited.
(1) Except as otherwise specifically provided in this chapter,
any person who --
(a) willfully intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any wire or
oral communication;
(b) willfully uses, endeavors to use, or procures any other
person to use or endeavor to use any electronic, mechanical, or
other device to intercept any oral communication when --
(i) such device is affixed to, or otherwise transmits a signal
through, a wire, cable, or other like connection used in wire
communication; or
(ii) such device transmits communications by radio, or
interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know
Page 416 U. S. 535
that such device or any component thereof has been sent through
the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises
of any business or other commercial establishment the operations of
which affect interstate or foreign commerce; or (B) obtains or is
for the purpose of obtaining information relating to the operations
of any business or other commercial establishment the operations of
which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession of the
United States;
(c) willfully discloses, or endeavors to disclose, to any other
person the contents of any wire or oral communication, knowing or
having reason to know that the information was obtained through the
interception of a wire or oral communication in violation of this
subsection; or
(d) willfully uses, or endeavors to use, the contents of any
wire or oral communication, knowing or having reason to know that
the information was obtained through the interception of a wire or
oral communication in violation of this subsection;
shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
(2)(a)(i) It shall not be unlawful under this chapter for an
operator of a switchboard, or an officer, employee, or agent of any
communication common carrier, whose facilities are used in the
transmission of a wire communication, to intercept, disclose, or
use that communication in the normal course of his employment while
engaged in any activity which is a necessary incident to the
rendition
Page 416 U. S. 536
of his service or to the protection of the rights or property of
the carrier of such communication:
Provided, That said
communication common carriers shall not utilize service observing
or random monitoring except for mechanical or service quality
control checks.
(ii) It shall not be unlawful under this chapter for an officer,
employee, or agent of any communication common carrier to provide
information, facilities, or technical assistance to an
investigative or law enforcement officer who, pursuant to this
chapter, is authorized to intercept a wire or oral
communication.
(b) It shall not be unlawful under this chapter for an officer,
employee, or agent of the Federal Communications Commission, in the
normal course of his employment and in discharge of the monitoring
responsibilities exercised by the Commission in the enforcement of
chapter 5 of title 47 of the United States Code, to intercept a
wire communication, or oral communication transmitted by radio, or
to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person
acting under color of law to intercept a wire or oral
communication, where such person is a party to the communication or
one of the parties to the communication has given prior consent to
such interception.
(d) It shall not be unlawful under this chapter for a person not
acting under color of law to intercept a wire or oral communication
where such person is a party to the communication or where one of
the parties to the communication has given prior consent to such
interception unless such communication is intercepted for the
purpose of committing any criminal or tortious act in violation of
the Constitution or laws of the United States or of any State or
for the purpose of committing any other injurious act.
Page 416 U. S. 537
(3) 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.
"
* * * *"
§ 2515. Prohibition of use as evidence of intercepted wire or
oral communications.
Whenever any wire or oral communication has been intercepted, no
part of the contents of such communication and no evidence derived
therefrom may be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand jury, department,
officer, agency, regulatory body, legislative committee, or other
authority of the United States, a State, or a political subdivision
thereof if the disclosure of that information would be in violation
of this chapter.
Page 416 U. S. 538
§ 2516. Authorization for interception of wire or oral
communications.
(1) The Attorney General, or any Assistant Attorney General
specially designated by the Attorney General, may authorize an
application to a Federal judge of competent jurisdiction for, and
such judge may grant in conformity with section 2518 of this
chapter an order authorizing or approving the interception of wire
or oral communications by the Federal Bureau of Investigation, or a
Federal agency having responsibility for the investigation of the
offense as to which the application is made, when such interception
may provide or has provided evidence of --
(a) any offense punishable by death or by imprisonment for more
than one year under sections 2274 through 2277 of title 42 of the
United States Code (relating to the enforcement of the Atomic
Energy Act of 1954), or under the following chapters of this title:
chapter 37 (relating to espionage), chapter 105 (relating to
sabotage), chapter 115 (relating to treason), or chapter 102
(relating to riots);
(b) a violation of section 186 or section 501(c) of title 29,
United States Code (dealing with restrictions on payments and loans
to labor organizations), or any offense which involves murder,
kidnapping, robbery, or extortion, and which is punishable under
this title;
(c) any offense which is punishable under the following sections
of this title: section 201 (bribery of public officials and
witnesses), section 224 (bribery in sporting contests), subsection
(d), (e), (f), (g), (h), or (i) of section 844 (unlawful use of
explosives), section 1084 (transmission of wagering information),
section 1503 (influencing or injuring an officer, juror, or witness
generally), section 1510 (obstruction of criminal investigations),
section 1511 (obstruction of
Page 416 U. S. 539
State or local law enforcement), section 1751 (Presidential
assassinations, kidnapping, and assault), section 1951
(interference with commerce by threats or violence), section 1952
(interstate and foreign travel or transportation in aid of
racketeering enterprises), section 1954 (offer, acceptance, or
solicitation to influence operations of employee benefit plan),
section 1955 (prohibition of business enterprises of gambling),
section 659 (theft from interstate shipment), section 664
(embezzlement from pension and welfare funds), sections 2314 and
2315 (interstate transportation of stolen property), section 1963
(violations with respect to racketeer influenced and corrupt
organizations) or section 351 (violations with respect to
congressional assassination, kidnapping, and assault);
(d) any offense involving counterfeiting punishable under
section 471, 472, or 473 of this title;
(e) any offense involving bankruptcy fraud or the manufacture,
importation, receiving, concealment, buying, selling, or otherwise
dealing in narcotic drugs, marihuana, or other dangerous drugs,
punishable under any law of the United States;
(f) any offense including extortionate credit transactions under
sections 892, 893, or 894 of this title; or
(g) any conspiracy to commit any of the foregoing offenses.(2)
The principal prosecuting attorney of any State, or the principal
prosecuting attorney of any political subdivision thereof, if such
attorney is authorized by a statute of that State to make
application to a State court judge of competent jurisdiction for an
order authorizing or approving the interception of wire or oral
communications, may apply to such judge for, and such judge may
grant in conformity with section 2518 of this chapter
Page 416 U. S. 540
and with the applicable State statute an order authorizing, or
approving the interception of wire or oral communications by
investigative or law enforcement officers having responsibility for
the investigation of the offense as to which the application is
made, when such interception may provide or has provided evidence
of the commission of the offense of murder, kidnapping, gambling,
robbery, bribery, extortion, or dealing in narcotic drugs,
marihuana or other dangerous drugs, or other crime dangerous to
life, limb, or property, and punishable by imprisonment for more
than one year, designated in any applicable State statute
authorizing such interception, or any conspiracy to commit any of
the foregoing offenses.
"
* * * *"
§ 2518. Procedure for interception of wire or oral
communications.
(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:
(a) the identity of the investigative or law enforcement officer
making the application, and the officer authorizing the
application;
(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
Page 416 U. S. 541
sought to be intercepted, (iv) the identity of the person, if
known, committing the offense and whose communications are to be
intercepted;
(c) a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous;
(d) a statement of the period of time for which the interception
is required to be maintained. If the nature of the investigation is
such that the authorization for interception should not
automatically terminate when the described type of communication
has been first obtained, a particular description of facts
establishing probable cause to believe that additional
communications of the same type will occur thereafter;
(e) a full and complete statement of the facts concerning all
previous applications known to the individual authorizing and
making the application, made to any judge for authorization to
intercept, or for approval of interceptions of, wire or oral
communications involving any of the same persons, facilities or
places specified in the application, and the action taken by the
judge on each such application; and
(f) where the application is for the extension of an order, a
statement setting forth the results thus far obtained from the
interception, or a reasonable explanation of the failure to obtain
such results.
(2) The judge may require the applicant to furnish additional
testimony or documentary evidence in support of the
application.
(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
Page 416 U. S. 542
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
Page 416 U. S. 543
or not the interception shall automatically terminate when the
described communication has been first obtained. An order
authorizing the interception of a wire or oral communication shall,
upon request of the applicant, direct that a communication common
carrier, landlord, custodian or other person shall furnish the
applicant forthwith all information, facilities, and technical
assistance necessary to accomplish the interception unobtrusively
and with a minimum of interference with the services that such
carrier, landlord, custodian, or person is according the person
whose communications are to be intercepted. Any communication
common carrier, landlord, custodian or other person furnishing such
facilities or technical assistance shall be compensated therefor by
the applicant at the prevailing rates.
(5) No order entered under this section 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, nor, in any event, longer than thirty days.
Extensions of an order may be granted, but only upon application
for an extension made in accordance with subsection (1) of this
section and the court making the findings required by subsection
(3) of this section. The period of extension shall be no longer
than the authorizing judge deems necessary to achieve the purposes
for which it was granted, and in no event for longer than thirty
days. Every order and extension thereof shall contain a provision
that the authorization to intercept shall be executed as soon as
practicable, shall be conducted in such a way as to minimize the
interception of communications not otherwise subject to
interception under this chapter, and must terminate upon attainment
of the authorized objective, or, in any event, in thirty days.
Page 416 U. S. 544
(6) 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.
(7) Notwithstanding any other provision of this chapter, any
investigative or law enforcement officer, specially designated by
the Attorney General or by the principal prosecuting attorney of
any State or subdivision thereof acting pursuant to a statute of
that State, who reasonably determines that --
(a) an emergency situation exists with respect to conspiratorial
activities threatening the national security interest or to
conspiratorial activities characteristic of organized crime that
requires a wire or oral communication to be intercepted before an
order authorizing such interception can with due diligence be
obtained, and
(b) there are grounds upon which an order could be entered under
this chapter to authorize such interception,
may intercept such wire or oral communication if an application
for an order approving the interception is made in accordance with
this section within forty-eight hours after the interception has
occurred, or begins to occur. In the absence of an order, such
interception shall immediately terminate when the communication
sought is obtained or when the application for the order is denied,
whichever is earlier. In the event such application for approval is
denied, or in any other case where the interception is terminated
without an order having been issued, the contents of any wire or
oral communication intercepted shall be treated as having been
obtained
Page 416 U. S. 545
in violation of this chapter, and an inventory shall be served
as provided for in subsection (d) of this section on the person
named in the application.
(8)(a) The contents of any wire or oral communication
intercepted by any means authorized by this chapter shall, if
possible, be recorded on tape or wire or other comparable device.
The recording of the contents of any wire or oral communication
under this subsection shall be done in such a way as will protect
the recording from editing or other alterations. Immediately upon
the expiration of the period of the order, or extensions thereof,
such recordings shall be made available to the judge issuing such
order and sealed under his directions. Custody of the recordings
shall be wherever the judge orders. They shall not be destroyed
except upon an order of the issuing or denying judge and, in any
event, shall be kept for ten years. Duplicate recordings may be
made for use or disclosure pursuant to the provisions of
subsections (1) and (2) of section 2517 of this chapter for
investigations. The presence of the seal provided for by this
subsection, or a satisfactory explanation for the absence thereof,
shall be a prerequisite for the use or disclosure of the contents
of any wire or oral communication or evidence derived therefrom
under subsection (3) of section 2517.
(b) Applications made and orders granted under this chapter
shall be sealed by the judge. Custody of the applications and
orders shall be wherever the judge directs. Such applications and
orders shall be disclosed or upon a showing of good cause before a
judge of competent jurisdiction and shall not be destroyed except
on order of the issuing or denying judge, and, in any event, shall
be kept for ten years.
(c) Any violation of the provisions of this subsection may be
punished as contempt of the issuing or denying judge.
Page 416 U. S. 546
(d) Within a reasonable time, but not later than ninety days
after the filing of an application for an order of approval under
section 2518(7)(b) which is denied or the termination of the period
of an order or extensions thereof, the issuing or denying judge
shall cause to be served, on the persons named in the order or the
application and such other parties to intercepted communications as
the judge may determine in his discretion that is in the interest
of justice, an inventory which shall include notice of --
(1) the fact of the entry of the order or the application;
(2) the date of the entry and the period of authorized, approved
or disapproved interception, or the denial of the application;
and
(3) the fact that, during the period wire or oral communications
were or were not intercepted.
The judge, upon the filing of a motion, may in his discretion
make available to such person or his counsel for inspection such
portions of the intercepted communications, applications and orders
as the judge determines to be in the interest of justice. On an
ex parte showing of good cause to a judge of competent
jurisdiction, the serving of the inventory required by this
subsection may be postponed.
(9) The contents of any intercepted wire or oral communication
or evidence derived therefrom shall not be received in evidence or
otherwise disclosed in any trial, hearing, or other proceeding in a
Federal or State court unless each party, not less than ten days
before the trial, hearing, or proceeding, has been furnished with a
copy of the court order, and accompanying application, under which
the interception was authorized or approved. This ten-day period
may be waived by the judge if he finds that it was not possible to
furnish the party with
Page 416 U. S. 547
the above information ten days before the trial, hearing, or
proceeding and that the party will not be prejudiced by the delay
in receiving such information.
(10)(a) Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States, a State,
or a political subdivision thereof, may move to suppress the
contents of any intercepted wire or oral communication, or evidence
derived therefrom, on the grounds that --
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was
intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order
of authorization or approval.
Such motion shall be made before the trial, hearing, or
proceeding unless there was no opportunity to make such motion or
the person was not aware of the grounds of the motion. If the
motion is granted, the contents of the intercepted wire or oral
communication, or evidence derived therefrom, shall be treated as
having been obtained in violation of this chapter. The judge, upon
the filing of such motion by the aggrieved person, may in his
discretion make available to the aggrieved person or his counsel
for inspection such portions of the intercepted communication or
evidence derived therefrom as the judge determines to be in the
interests of justice.
(b) In addition to any other right to appeal, the United States
shall have the right to appeal from an order granting a motion to
suppress made under paragraph (a) of this subsection, or the denial
of an application for an order of approval, if the United States
attorney shall certify to the judge or other official granting such
motion or denying such application that the appeal
Page 416 U. S. 548
is not taken for purposes of delay. Such appeal shall be taken
within thirty days after the date the order was entered, and shall
be diligently prosecuted.
"
* * * *"
§ 2520. Recovery of civil damages authorized.
Any person whose wire or oral communication is intercepted,
disclosed, or used in violation of this chapter shall (1) have a
civil cause of action against any person who intercepts, discloses,
or uses, or procures any other person to intercept, disclose, or
use such communications, and (2) be entitled to recover from any
such person --
(a) actual damages but not less than liquidated damages computed
at the rate of $100 a day for each day of violation or $1,000,
whichever is higher;
(b) punitive damages; and
(c) a reasonable attorney's fee and other litigation costs
reasonably incurred.
A good faith reliance on a court order or legislative
authorization shall constitute a complete defense to any civil or
criminal action brought under this chapter or under any other
law.
[
Footnote 1]
This and other relevant provisions of the statute are contained
in the Appendix to this opinion,
post, p.
416 U. S.
534.
[
Footnote 2]
Evidence derived from the unlawful interceptions conducted
pursuant to the October 16 wiretap order was held to include the
evidence obtained under the November 6 wiretap extension order and
also the evidence secured under court orders of October 22 and
November 6 extending investigative authority to use a "pen
register,"
i.e., a device that records telephone numbers
dialed from a particular phone, which had previously been used to
monitor the numbers dialed from Giordano's phone pursuant to a
court order of October 8. The applications presented to the
District Court to extend wiretap and pen register authority each
detailed at considerable length the contents of conversations
intercepted pursuant to the October 16 order in support of the
requests. We therefore agree with the Court of Appeals, for the
reasons discussed in
416 U. S.
infra that evidence gathered under the wiretap and pen
register extension orders is tainted by the use of unlawfully
intercepted communications under the October 16 order to secure
judicial approval for the extensions, and must be suppressed.
[
Footnote 3]
The Second Circuit has held that approval of wiretap
applications by the Attorney General's Executive Assistant complies
with the dictates of § 2516(1). In
United States v.
Pisacano, 459 F.2d 259 (1972), the court refused to permit
withdrawal of guilty pleas on the basis of subsequent discovery
that the Executive Assistant had authorized the first of three
wiretap applications, declaring that it was
"not at all convinced that, if this case had gone to trial and
the court had refused to suppress evidence obtained by the
wiretaps, we would have reversed,"
and that "the Justice Department's procedures were very likely
consistent with the mandate of § 2516(1)."
Id. at 264 and
n. 5. Shortly thereafter, a different panel of that Circuit
affirmed judgments of convictions in a case raising the same issue,
out of "adherence to the law of the circuit" so recently decided
and with the admonition that its decision should "not . . . be
construed as an approval of the procedure followed by the Attorney
General and his staff."
United States v. Becker, 461 F.2d
230, 236 (1972). In every other circuit which has considered the
issue, suppression of evidence derived from court-approved wire
interceptions based on an application authorized by the Attorney
General's Executive Assistant has been held to be required by Title
III.
United States v. Mantello, 156 U.S.App.D.C. 2, 478
F.2d 671 (1973);
United States v. Roberts, 477 F.2d 57
(CA7 1973);
United States v. King, 478 F.2d 494 (CA9
1973).
See also United States v. Robinson, 468 F.2d 189
(CA5 1972),
remanded for an evidentiary hearing to determine
whether the applications were properly authorized under §
2516(1), 472 F.2d 973 (en banc 1973).
[
Footnote 4]
Because of our disposition of this case, we do not reach the
grounds relied upon by the District Court. The issue resolved in
the District Court, however, is the subject of the companion case,
United States v. Chavez, post, p.
416 U. S. 562.
[
Footnote 5]
In full, 28 U.S.C. § 509 provides:
"§ 509. Functions of the Attorney General."
"All functions of other officers of the Department of Justice
and all functions of agencies and employees of the Department of
Justice are vested in the Attorney General except the functions
--"
"(1) vested by subchapter II of chapter 5 of title 5 in hearing
examiners employed by the Department of Justice;"
"(2) of the Federal Prison Industries, Inc.;"
"(3) of the Board of Directors and officers of the Federal
Prison Industries, Inc.; and"
"(4) of the Board of Parole."
[
Footnote 6]
Criminal sanctions were provided in 18 U.S.C. § 2511, and a
civil damages remedy was created b § 2520.
See Appendix to
this opinion,
post, p.
416 U. S.
534.
[
Footnote 7]
In 1967, a draft statute prepared by Professor G. Robert Blakey
of the University of Notre Dame Law School to regulate the
interception of wire and oral communications was published in The
President's Commission on Law Enforcement and Administration of
Justice, Task Force Report: Organized Crime, Appendix C, at 106
113. In part, it would have added a provision to Title 18, United
States Code, which empowered the "Attorney General, or any
Assistant Attorney General of the Department of Justice specially
designated by the Attorney General" to authorize an application to
a federal judge for an order to intercept wire or oral
communications.
Id. at 108. Senator McClellan introduced a
proposed "Federal Wire Interception Act," S. 675, on January 25,
1967, 113 Cong.Rec. 1491, containing, in § 5(a), the same
designations of which federal prosecuting officials could authorize
a wiretap application. Hearings on Controlling Crime Through More
Effective Law Enforcement before the Subcommittee on Criminal Laws
and Procedures of the Senate Committee on the Judiciary, 90th
Cong., 1st Sess., 7 (1967). Senator Hruska later introduced S. 2050
on June 29, 1967, 113 Cong.Rec. 18007 which would have provided for
regulated use of electronic surveillance, as well as wiretapping,
and which again made provision, in a new § 2516 to be added to
Title 18, United States Code, for the same system of approval of
applications for the interception of wire or oral communications as
was present in the Blakey bill. Hearings,
supra at 1005.
In the House of Representatives, the Blakey bill was introduced on
October 3, 1967, in the form of H.R. 13275, 113 Cong.Rec. 27718.
Ultimately, the same operative language was enacted in Title
III.
[
Footnote 8]
In the hearings on the McClellan bill, S. 675,
see
n 7,
supra, the
limitation on the application authorization power was frequently
brought to the fore. Thus, Chief Judge Lumbard of the United States
Court of Appeals for the Second Circuit, who had earlier been
United States Attorney for the Southern District of New York, noted
in testimony on March 8, 1967, that the "application would require
approval of the Attorney General or a designated assistant . . . ,"
and he urged, in support of his recommendation, that it was
unnecessary to limit the use of wiretapping to the investigation of
a narrow group of serious crimes, the fact that there were other
factors which would greatly limit the use of wiretapping, beginning
with the observation that
"the proposed statute, section 5a, provides that only the
Attorney General, or any Assistant Attorney General specifically
designated by him, may authorize the necessary application to a
Federal judge for approval to wiretap. Thus, the application will
be carefully screened."
Hearings on Controlling Crime Through More Effective Law
Enforcement,
supra, n
7, at 171-172. A letter urging adoption of legislation to govern
the area of wiretapping and electronic eavesdropping was sent to
the subcommittee on March 7 by all living former United States
Attorneys of the Southern District of New York, who recommended
that interception be prohibited
"unless authorized by a Federal judge on application of the
Attorney General, or any Assistant Attorney General of the
Department of Justice specially designated by the Attorney General,
when such authorized interception or recording may provide evidence
of an offense against the laws of the United States."
Id. at 511-512. And Senator McClellan himself commented
to a judge testifying before the subcommittee:
"This legislation, as you know, requires rather thorough court
supervision through the application for a court order made by the
Attorney General or officials designated in the bill. A court, of
course, would have to weigh the probable cause or the reasonable
cause in support of such an application. I do not know how to
tighten it up any more than we have in the bill. . . . Can you tell
us how to tighten it up any more?"
Id. at 894-895.
[
Footnote 9]
The Attorney General is appointed by the President, by and with
the advice and consent of the Senate, 28 U.S.C. § 503, as are the
nine Assistant Attorneys General provided for in 28 U.S.C. § 506.
The position of Executive Assistant, on the other hand, is
established by regulation, to assist the Attorney General,
inter alia, in the review of "matters submitted for the
Attorney General's action" and to "[p]erform such other duties and
functions as may be specially assigned from time to time by the
Attorney General." 28 CFR § 0.6. It would appear from the
Government's brief that the Executive Assistant involved in this
case served as Executive Assistant to at least four Attorneys
General.
[
Footnote 10]
In debate on the Senate floor the day before Title III was
adopted, Senator McClellan responded to an inquiry of Senator
Lausche in the following matter:
"Mr. LAUSCHE. Does the bill as now written give absolute,
unconditional power to stop searches or tapping, or to authorize
tapping?"
"Mr. McCLELLAN. No. We have to go first to the Attorney General
in the case of the Federal Government, and to the chief law
enforcement officers of a State. . . . "
"Mr. LAUSCHE. There is, then, a prohibition against tapping
unless the application is filed with the chief law enforcement
official. He approves it, and then the application is filed with
the court, is that not correct?"
"Mr. McCLELLAN. The chief law enforcement officer, like the
Attorney General of the United States, must authorize the
application. . . . A prosecuting attorney or a U.S. district
attorney cannot, on his own motion, do it. He has to get the
authority from the Attorney General of the United States first to
submit the application to the court."
114 Cong.Rec. 14469. During the same debate, Senator Long read
from a report of the Association of the Bar of the City of New
York, Committee on Federal Legislation, Committee on Civil Rights,
"Proposed Legislation on Wiretapping and Eavesdropping after
Berger v. New York and
Katz v. United States,"
which commented on the application provisions of Title III in the
following manner:
"
Who May Apply"
"The Blakey Bill provides that application for wiretapping or
eavesdropping orders may be made by only a limited number of
persons. At the Federal level, these are the Attorney General of
the United States or an Assistant Attorney General, and at the
State level, they are the State Attorney General or the principal
prosecuting attorney of a political subdivision (such as a county
or city District Attorney)."
"We agree that responsibility should be focused on those public
officials who will be principally accountable to the courts and the
public for their actions. Police and investigative agencies should
not have the power to make such applications on their own. On the
other hand, it seems anomalous to permit only very high Federal
officials to apply, excluding such officials as United States
Attorneys for entire States or Districts like the Southern District
of New York, while permitting county district attorneys with
substantially less responsibility to make applications. . . ."
"We also would seek to reduce the anomaly referred to above by
providing that the Attorney General may delegate to United States
Attorneys the power to initiate applications."
114 Cong.Rec. 14473-14474.
[
Footnote 11]
The following comments concerning § 2516(2) are found in S.Rep.
No. 1097, 90th Cong., 2d Sess., 98 (1968):
"Paragraph (2) provides that the principal prosecuting attorney
of any State or the principal prosecuting attorney of any political
subdivision of a State may authorize an application to a State
judge of competent jurisdiction . . . for an order authorizing the
interception of wire or oral communications. The issue of
delegation by that officer would be a question of State law. 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 state-wide law
enforcement in the area of the use of electronic surveillance in
the chief prosecuting officer of the State. . . . Where no such
office exists, policymaking would not be possible on a state-wide
basis; it would have to move down to the next level of government.
In most States, the principal prosecuting attorney at the next
political level of a State, usually the county, would be the
district attorney, State's attorney, or county solicitor. The
intent . . . is to centralize area-wide law enforcement policy in
him. . . . Where there are both an attorney general and a district
attorney, either could authorize applications, the attorney general
anywhere in the State and the district attorney anywhere in his
county. The proposed provision does not envision a further
breakdown. Although city attorneys may have in some places limited
criminal prosecuting jurisdiction, the proposed provision is not
intended to include them."
[
Footnote 12]
We also deem it clear that the authority must be exercised
before the application is presented to a federal judge. The
suggestion that it is acceptable practice under § 2516(1) for the
Attorney General's Executive Assistant to approve wiretap
applications in the Attorney General's absence if the Attorney
General subsequently, after a court order has issued, ratifies the
giving of approval in the particular instance, either directly or
by personally approving the submission of a further application for
an extension order, as in this case, is wide of the mark. As the
Court of Appeals for the Fifth Circuit noted in the panel decision
in
United States v. Robinson, 468 F.2d at 193, the
Attorney General's
"authority from Congress was to initiate wiretap applications,
not to seek to have those terminated he found should never have
been requested in the first place."
It would ill serve the congressional policy of having the
Attorney General or one of his Assistants screen the applications
prior to their submission to court to have the screening process
occur after the application is made and after investigative
officials have already begun to intercept wire or oral
communications under a court order predicated on the assumption
that proper authorization to apply for intercept authority had been
given.
[
Footnote 13]
No question is raised in this case concerning the manner of
conducting the court-approved interceptions of Giordano's
telephone, and, thus, § 2518(10)(a)(iii) is inapplicable to the
present situation.
[
Footnote 14]
The Court of Appeals also held that suppression was required
under subdivision (ii) on the theory that the absence of any valid
authorization of the wiretap application was the equivalent of
failing to identify at all in the interception order the person who
authorized the application, rendering the order "insufficient on
its face." Manifestly, however, the order, on its face, clearly,
though erroneously, identified Assistant Attorney General Wilson as
the Justice Department officer authorizing the application,
pursuant to special designation by the Attorney General. As it
stood, the intercept order was facially sufficient under § 2516(1),
and, despite what was subsequently discovered, the Court of Appeals
was in error in justifying suppression under § 2518(10)(a)(ii).
[
Footnote 15]
The Government suggested at oral argument that, in addition to
constitutional violations, willful statutory violations might also
fit within the terms of § 2518(10)(a)(i). Tr. of Oral Arg. 33.
[
Footnote 16]
The draft statute prepared by Professor Blakey provided this
fourth ground warranting suppression in cases where there was no
probable cause for believing the existence of the grounds on which
the interception order was issued. Task Force Report: Organized
Crime,
supra, n 7, at
111, § 3803(k)(1)(C). So did the McClellan bill, S. 675, which was
introduced prior to
Berger v. New York, 388 U. S.
41 (1967). Hearings on Controlling Crime Through More
Effective Law Enforcement,
supra, n 7, at 78, § 8(g)(3). But the bill proposed by Senator
Hruska after
Berger (S. 2050) omitted this ground in a
provision the language of which is substantially identical to §
2518(10)(a) as finally enacted.
Id. at 1008, § 2518(k)(1).
An explanation for the omission is provided in an appendix
comparing S. 675 with S. 2050, which was published by Senator
Scott, a cosponsor of the latter bill, in an article in the Howard
Law Journal, Wiretapping and Organized Crime, 14 How.L.J. 1 (1968),
and which was reprinted in Senator Scott's remarks on the Senate
floor concerning the Omnibus Crime Control and Safe Streets Act of
1968. 114 Cong.Rec. 1320-13211. It is there simply stated that
"Senator Hruska's man says that the probable cause test is implied
in (1)."
Id. at 13211.
[
Footnote 17]
In relevant part, S.Rep. No. 1097,
supra, n 11, at 96, 106, provides:
"Section 2515 of the new chapter imposes an evidentiary sanction
to compel compliance with the other prohibitions of the chapter. .
. . The provision must, of course, be read in light of section
2518(10)(a) discussed below, which defines the class entitled to
make a motion to suppress. It largely reflects existing law. It
applies to suppress evidence directly (
Nardone v. United
States, 302 U. S. 379 (1937)), or
indirectly obtained in violation of the chapter. (
Nardone v.
United States, 308 U. S. 338 (1939).) There is,
however, no intention to change the attenuation rule. . . . Nor
generally to press the scope of the suppression role beyond present
search and seizure law. . . . But it does apply across the board in
both Federal and State proceeding[s]. . . . And it is not limited
to criminal proceedings. Such a suppression rule is necessary and
proper to protect privacy. . . . The provision thus forms an
integral part of the system of limitations designed to protect
privacy. Along with the criminal and civil remedies, it should
serve to guarantee that the standards of the new chapter will
sharply curtail the unlawful interception of wire and oral
communications."
"
* * * *"
"[Section 2518(10)(a)] must be read in connection with sections
2515 and 2517, discussed above, which it limits. It provides the
remedy for the right created by section 2515. [Except for its
inapplicability to grand jury proceedings and an absence of intent
to grant jurisdiction to federal courts over Congress,]
[o]therwise, the scope of the provision is intended to be
comprehensive."
[
Footnote 18]
We find without substance the Government's suggestion that,
since 18 U.S.C. § 2511(1)(e) makes criminal the "willful"
disclosure of the contents of an intercepted communication,
"knowing or having reason to know that the information was
obtained through the interception of a wire or oral communication
in violation of this subsection,"
and § 2515 ties the propriety of suppression of evidence to the
impropriety of its "disclosure," to hold that statutory violations
committed in the Justice Department's internal approval and
submission procedures with respect to wiretap applications preclude
disclosure in court would be to attribute to Congress an intent to
impose substantial criminal penalties for "every defect in
processing applications." Brief for United States 38. Apart from
the fact that a majority of the Court in
United States v.
Chavez, post, p.
416 U. S. 562, has
concluded that not every defect will warrant suppression, it is
evident that § 2511 does not impose criminal liability unless
disclosure is "willful" and unless the information was known to
have been obtained in violation of § 2511(1). Clearly, the
circumstances under which suppression of evidence would be required
are not necessarily the same as those under which a criminal
violation of Title III would be found.
[
Footnote 19]
We are also of the view that the evidence obtained from the
extended authorizations of October 22 and November 6 for the
installation and use of the pen register device on Giordano's
telephone was inadmissible because derived from the invalid wire
interception that began on October 16.
See n 2,
supra. The application for the
October 22 extension attached the logs of telephone conversations
monitored under the October 16 order and asserted that these logs
revealed the "continued use of the telephone . . . for
conversations regarding illegal tracking in narcotics." App. 55. In
these circumstances, it appears to us that the illegally monitored
conversations should be considered a critical element in extending
the pen register authority. We have been furnished with nothing to
indicate that the pen register extension of November 6 should be
accorded any different treatment.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE REHNQUIST join, concurring in part and
dissenting in part.
I agree with the majority that the authorization by the
Executive Assistant to the Attorney General of the application for
the October 16 interception order contravened 18 U.S.C. § 2516(1)
and that the statutory remedy is suppression of all evidence
derived from interceptions made under that order. I therefore join
Parts I, II, and III of the opinion of the Court. For the reasons
stated below, however, I dissent from the Court's conclusion,
stated in
416 U. S. that
evidence
Page 416 U. S. 549
obtained under the two "pen register" [
Footnote 2/1] extension orders and under the November 6
extension of the interception order must also be suppressed.
These are the pertinent facts. On October 8, 1970, the Chief
Judge of the United States District Court for the District of
Maryland authorized the use of a pen register device to monitor and
record for a 14-day period all numbers dialed from a telephone
listed to respondent Giordano. There is no dispute that the pen
register order was based on probable cause, and was therefore
lawful under the Fourth Amendment. On October 16, 1970, the
District Court issued an order authorizing the interception of wire
communications to and from Giordano's telephone for a period not to
exceed 21 days. There is likewise no dispute that the wiretap order
was based on probable cause. The defect in the application for this
order was not the strength of the Government's showing on the
merits of its request, but the authorization of the application by
the Executive Assistant to the Attorney General, rather than by one
of the officials specifically designated in 18 U.S.C. § 2516(1). As
a result of this procedural irregularity, both the contents of
communications intercepted under the October 16 wiretap order and
any "evidence derived therefrom" must be suppressed. 18 U.S.C. §§
2515 and 2518(10)(a).
The authorization for use of the pen register device was
extended by orders dated October 22 and November
Page 416 U. S. 550
6, 1970. On the latter date the District Court also extended the
intercept authority for a maximum additional period of 15 days. All
three extension orders were based in part, but only in part, on
evidence obtained under the invalid wiretap order of October 16.
The wiretap extension order, unlike the original intercept order,
was not marred by the defect of improper authorization.
The Government contends that, putting aside all evidence derived
from the invalid original wiretap order, the independent and
untainted evidence submitted to the District Court constituted
probable cause for issuance of both pen register extension orders
and the wiretap extension order, and, in the latter case, also
satisfied the additional requirements imposed by 18 U.S.C. §
2518(3). [
Footnote 2/2] Preoccupied
with the larger issues in the case, the District Court summarily
dismissed this contention insofar as it related to the pen register
extension orders:
"The subsequent extension orders are not supported by sufficient
showings of probable cause,
Page 416 U. S. 551
however, for the reason that information was used to obtain
those extension orders from a Title III wiretap which, for reasons
appearing later in this opinion, was defective. The 'fruit of the
poisonous tree' doctrine requires the suppression of all pen
register information obtained under the subsequent orders.
Nardone v. United States, 308 U. S.
338 . . . (1939); 18 U.S.C. § 2518(10)(a)."
340 F.
Supp. 1033, 1041 (Md.1972). The Court of Appeals did not
mention the point. 469 F.2d 522 (CA4 1972).
With respect to the wiretap extension, neither the District
Court nor the Court of Appeals addressed the Government's
contention that communications intercepted under the extension were
not derivatively tainted by the improper authorization defect in
the original wiretap order, and neither court made any finding on
this contention. The District Court simply found the wiretap
extension order invalid on a different ground applicable both to
the extension and to the original order. Specifically, the court
concluded that the original wiretap order was unlawful because the
application for it misidentified the approving officer and
therefore failed to comply strictly with the provisions of 18
U.S.C. §§ 2518(1)(a) and (4)(d). The misidentification problem
occurred in the application for the original wiretap order and in
the application for the wiretap extension. The District Court held
the extension order invalid on that basis alone, and ordered the
evidence obtained pursuant thereto suppressed for that reason.
[
Footnote 2/3] The Court of
Page 416 U. S. 552
Appeals affirmed on a different ground entirely. It held the
original order invalid because the application for it had been
approved by the Executive Assistant to the Attorney General, rather
than by one of the officials designated in 18 U.S.C. § 2516(1). The
defect of improper authorization, unlike the misidentification
problem, arose only in connection with the original wiretap order.
Perhaps through simple oversight, the Court of Appeals failed to
consider the fate of the evidence obtained under the extension.
Thus, neither of the lower courts ruled on the derivative evidence
question.
Today we affirm the suppression of evidence obtained under the
original wiretap order for the same reason adopted by the Court of
Appeals -- the defect of improper authorization. As noted above,
this defect did not occur in the application for the wiretap
extension order. Today we also hold that misidentification of the
approving authority does not render inadmissible evidence obtained
pursuant to a resulting interception order.
United States v.
Chavez, post, p.
416 U. S. 562.
This decision removes the sole basis advanced by the District Court
for suppressing the telephone conversations intercepted under the
wiretap extension order, and requires us to consider whether that
evidence should be suppressed by reason of the improper
authorization of the application for the original order. In doing
so, it is important to note that we are the first court to consider
this aspect of the case.
The majority holds that the invalidity of the original wiretap
order requires suppression of all evidence
Page 416 U. S. 553
obtained under the three extension orders. In my view, the
application to this case of well established principles, principles
developed by the courts to effectuate constitutional guarantees and
adopted by Congress to effectuate the statutory guarantees of Title
III, demonstrates that the majority's conclusion is error. As will
appear, the same analysis governs all three extension orders, but
it may clarify my position to deal with the two pen register
extension orders in Part I, below, and to reserve discussion of the
November 6 extension of the wiretap for Part II.
I
The installation of a pen register device to monitor and record
the numbers dialed from a particular telephone line is not governed
by Title III. This was the conclusion of the District Court in the
instant case and of the courts in
United States v.
King, 335 F.
Supp. 523, 548-549 (SD Cal.1971), and in
United States v.
Vega, 52 F.R.D. 503, 507 (EDNY 1971). This conclusion rests on
the fact that the device does not hear sound, and therefore does
not accomplish any "interception" of wire communications as that
term is defined by 18 U.S.C. § 2510(4) -- "the
aural
acquisition of the contents of any wire or oral communication
through the use of any electronic, mechanical, or other device"
(emphasis added). Any doubt of the correctness of this
interpretation is allayed by reference to the legislative history
of Title III. The Report of the Senate Committee on the Judiciary
in discussing the scope of the statute explicitly states "[t]he use
of a
pen register,' for example, would be permissible." S.Rep.
No. 1097, 90th Cong., 2d Sess., 90 (1968).
Because a pen register device is not subject to the provisions
of Title III, the permissibility of its use by law enforcement
authorities depends entirely on compliance
Page 416 U. S. 554
with the constitutional requirements of the Fourth Amendment.
[
Footnote 2/4] In this case, the
Government secured a court order, the equivalent for this purpose
of a search warrant, for each of the two extensions of its
authorization to use a pen register. The District Court seemed to
assume that, because these extension orders were based in part on
tainted evidence, information obtained pursuant thereto must
necessarily be suppressed under the "fruit of the poisonous tree"
doctrine. 340 F. Supp. at 1041. That is not the law.
The District Court relied on
Nardone v. United States,
308 U. S. 338
(1939). In that decision, the Court held that a statutory
prohibition of unlawfully obtained evidence encompassed derivative
evidence as well. But the Court also reaffirmed that the connection
between unlawful activity and evidence offered at trial may become
"so attenuated as to dissipate the taint,"
id. at
308 U. S. 341,
and that facts improperly obtained may nevertheless be proved if
knowledge of them is based on an independent source.
Ibid.
In its constitutional aspect, the principle is illustrated by
Wong Sun v. United States, 371 U.
S. 471 (1963). It is, in essence, that the derivative
taint of illegal activity does not extend to the ends of the earth,
but only until it is dissipated by an intervening event. Of course,
the presence of an independent source would always suffice.
The independent source rule has as much vitality in the context
of a search warrant as in any other. Thus, for example, unlawfully
discovered facts may serve as the basis for a valid search warrant
if knowledge of them
Page 416 U. S. 555
is obtained from an independent and lawful source.
See,
e.g., Anderson v. United States, 344 F.2d 792 (CA10 1965). The
obvious and well established corollary is that the inclusion in an
affidavit of indisputably tainted allegations does not necessarily
render the resulting warrant invalid. The ultimate inquiry on a
motion to suppress evidence seized pursuant to a warrant is not
whether the underlying affidavit contained allegations based on
illegally obtained evidence, but whether, putting aside all tainted
allegations, the independent and lawful information stated in the
affidavit suffices to show probable cause.
James v. United
States, 135 U.S.App.D.C. 314, 315, 418 F.2d 1150, 1151 (1969);
United States v. Sterling, 369 F.2d 799, 802 (CA3 1966);
United States v. Tarrant, 460 F.2d 701, 703-704 (CA5
1972);
United States v. Koonce, 485 F.2d 374, 379 (CA8
1973);
Nowell v. Cupp, 427 F.2d 36, 38 (CA9 1970);
Chin Kay v. United States, 311 F.2d 317, 321 (CA9 1962).
[
Footnote 2/5] Judge
Page 416 U. S. 556
Weinfeld aptly stated the point in
United States v.
Epstein, 240 F. Supp.
80 (SDNY 1965):
"There is authority, and none to the contrary, that, when a
warrant issues upon an affidavit containing both proper and
improper grounds, and the proper grounds -- considered alone -- are
more than sufficient to support a finding of probable cause,
inclusion of the improper grounds does not vitiate the entire
affidavit and invalidate the warrant."
Id. at 82. I know of no precedent holding to the
contrary. [
Footnote 2/6]
The application of this principle to the pen register extension
orders is clear beyond doubt. The original pen register order was
based on a showing of probable
Page 416 U. S. 557
cause made prior to, and therefore undeniably independent of,
the invalid wiretap. The affidavit supporting the first extension
of the pen register order incorporated the allegations contained in
the affidavit submitted for the original order and provided the
additional untainted information that Giordano had sold heroin to a
narcotics agent on October 17, 1970. The affidavit for the second
extension of the pen register order is not included in the record,
but there is no reason to doubt that it made a similar
incorporation by reference of the earlier, untainted allegations. I
would hold the evidence obtained under the first pen register
extension order admissible and remand the case for determination of
whether evidence obtained under the second extension should be
admitted as well.
The basis for the majority's conclusion to the contrary is far
from apparent. In the final footnote to its opinion, the Court
states that the evidence obtained under the defective original
wiretap order "should be considered a critical element in extending
the pen register authority." The majority does not suggest,
however, that the original pen register order was based on anything
less than probable cause. Nor does it deny that the affidavit
supporting the extension of the pen register authority fully
incorporated the earlier untainted allegations. And, finally, the
majority does not contradict the established principle that a
warrant based on an affidavit containing tainted allegations may
nevertheless be valid if the independent and lawful information
stated in the affidavit shows probable cause. In light of these
significant silences, the majority's bare assertion that the
tainted evidence obtained under the original wiretap order was a
"critical element" in the extension of the pen register authority
is, to me, an unexplained conclusion -- not a rationale.
Page 416 U. S. 558
II
Unlike the pen register extensions, the wiretap extension order
of November 6 is governed by Title III. The provisions of that
statute prescribe an elaborate procedure for the lawful
interception of wire communications. To the extent that the
statutory requirements for issuance of an intercept order are
nonconstitutional in nature, the exclusionary rule adopted to
effectuate the Fourth Amendment does not pertain to their
violation. The statute, however, contains its own exclusionary
rule, 18 U.S.C. § 2518(10)(a), and the scope of the suppression
remedy is defined by 18 U.S.C. § 2515 to include derivative
evidence:
"Whenever any wire or oral communication has been intercepted,
no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial. . .
."
The obvious and familiar model for the statutory ban on the use
of derivative evidence was the constitutional doctrine of the
"fruit of the poisonous tree," and the legislative history confirms
that Congress intended the phrase "no evidence derived therefrom"
to incorporate that doctrine and render it applicable to certain
statutory violations of nonconstitutional dimensions. The Senate
Report makes the point explicitly:
"[Section 2515] largely reflects existing law. It applies to
suppress evidence directly (
Nardone v. United States,
302 U. S.
379 (1937)) or indirectly obtained in violation of the
chapter. (
Nardone v. United States, 308 U. S.
338 (1939).) There is, however, no intention to change
the attenuation rule.
See Nardone v. United States, 127
F.2d 521 (2d)!
cert. denied, 316 U.S. 698 (1942);
Wong
Sun
Page 416 U. S. 559
v. United States, 371 U. S. 471 (1963)."
S.Rep. No. 1097, 90th Cong., 2d Sess., 96. Thus, although the
validity of a wiretap order depends on the satisfaction of certain
statutory conditions in addition to the constitutional requirement
of probable cause, the principle developed in
416 U.
S. The question is not whether the application for that
order relied in part on communications intercepted under the
invalid original order but whether, putting aside that tainted
evidence, the independent and lawful information stated in the
supporting affidavit suffices to show both probable cause and
satisfaction of the various additional requirements of Title III.
[
Footnote 2/7]
United States
v.
Page 416 U. S. 560
Iannelli, 339 F.
Supp. 171 (WD Pa.1972);
United States v.
Ceraso, 355 F.
Supp. 126 (MD Pa.1973).
The application for the wiretap extension order was supported by
the affidavit of a group supervisor from the Bureau of Narcotics
and Dangerous Drugs. The same officer had sworn to one of two
affidavits submitted in support of the application for the original
wiretap order. The other had been filed by a narcotics agent acting
under his supervision and stated facts within their joint
knowledge. In the affidavit for the extension order, the supervisor
swore that he had reviewed both of the earlier affidavits, and he
"reassert[ed] the facts, details and conclusions contained in those
affidavits." App. 66. Those allegations not only established
probable cause to believe that Giordano was engaged in the illegal
sale and distribution of narcotics on a fairly substantial scale,
18 U.S.C. § 2518(3)(a), they also satisfied the additional
statutory criteria for issuance of an intercept order. They showed,
for example, that Giordano had made numerous telephone calls to
numbers listed to well known narcotics violators, and hence that
there was probable cause to believe that communications concerning
the illegal drug traffic were taking place on Giordano's telephone
line.
See 18 U.S.C. §§ 2518(3)(b) and (d). The affidavits
also established the inadequacy of alternative investigative means,
and demonstrated that, without a wiretap of Giordano's telephone,
the narcotics agents would be unable to discover his source of
supply or method of distribution.
See 18 U.S.C. §
2518(3)(c). All this was shown on the basis of wholly untainted
evidence incorporated and reaffirmed in the affidavit
supporting
Page 416 U. S. 561
the Government's request for the wiretap extension order.
The affidavit also provided additional untainted information to
support the application for the extension order. It set forth, for
example, the circumstances of Giordano's sale of $3,800 worth of
heroin to an undercover agent on the day following issuance of the
original wiretap order. Moreover, it recounted in great detail
highly suspicious conduct observed by federal agents keeping
Giordano under physical surveillance. [
Footnote 2/8] Like the allegations incorporated by
reference from the earlier affidavits, this additional untainted
information was relevant both to the constitutional requirement of
probable cause and to the various statutory criteria for issuance
of an intercept order. 18 U.S.C. § 2518(3).
In light of the substantiality and detail of the untainted
allegations offered in support of the application for the wiretap
extension order, I find no basis for the majority's rather summary
conclusion that the communications intercepted under that extension
order were derivatively tainted by the improper authorization of
the application for the original wiretap order. Because neither the
District Court nor the Court of Appeals has considered this
question, I would remand the case with instructions that the issue
be settled in accord with the principles set forth in this
opinion.
[
Footnote 2/1]
A pen register is a mechanical device attached to a given
telephone line and usually installed at a central telephone
facility. It records on a paper tape all numbers dialed from that
line. It does not identify the telephone numbers from which
incoming calls originated, nor does it reveal whether any call,
either incoming or outgoing, was completed. Its use does not
involve any monitoring of telephone conversations. The mechanical
complexities of a pen register are explicated in the opinion of the
District Court.
340 F.
Supp. 1033, 1038-1041 (Md.1972).
[
Footnote 2/2]
Under 18 U.S.C. § 2518(3), the court is required to make the
following determinations:
"(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."
[
Footnote 2/3]
Immediately after stating its conclusion that the
misidentification problem required suppression, the District Court
made its sole reference to the November 6 extension order:
"The application and order relating to the extension of the
wiretap are defective for the same reasons as the original
application and order."
340 F. Supp. at 1060. Plainly, this reference to the "same
reasons" concerns the failure to comply literally with §§
2518(1)(a) and (4)(d) identification requirements and has nothing
to do with any derivative evidence rule.
[
Footnote 2/4]
The Government suggests that the use of a pen register may not
constitute a search within the meaning of the Fourth Amendment. I
need not address this question, for, in my view, the constitutional
guarantee, assuming its applicability, was satisfied in this
case.
[
Footnote 2/5]
All of the cases cited are directly on point. There are a few
additional decisions that indirectly support the general
proposition stated above.
United States v. Cantor, 470
F.2d 890 (CA3 1972), involved a defendant's claim that the
Government violated his Fourth Amendment rights by refusing to
disclose to him certain evidence that had been used to establish
probable cause for issuance of a warrant. The court rejected that
claim on the ground that there was adequate independent
justification to find probable cause.
Id. at 893. The
cases of
United States v. Jones, 475 F.2d 723 (CA5 1973),
and
United States v. Upshaw, 448 F.2d 1218 (CA5 1971),
stand for the proposition that the validity of a search warrant
based in part on erroneous statements is determined by evaluating
the sufficiency of the other allegations. Finally,
United
States v. Lucarz, 430 F.2d 1051 (CA9 1970), involved a search
warrant based on an affidavit containing two paragraphs that
invited the magistrate to find probable cause by drawing a negative
inference from the defendant's exercise of his constitutional right
to the assistance of counsel. The court held the validity of the
warrant was to be determined on the basis of the other allegations
in the affidavit.
[
Footnote 2/6]
In fact, there are only two cases lending even colorable support
to a contrary view. Both are from the Sixth Circuit, and neither
can be said to contradict the general proposition stated above. In
United States v. Langley, 466 F.2d 27 (1972), the court
considered the validity of a warrant issued on the basis of
information obtained in a previous warrantless search. The court
held the prior search valid in large part and affirmed the validity
of the warrant for the second search despite the inclusion in the
affidavit of allegations based on the unlawful aspects of the first
search. Although the case therefore illustrates the principle
stated above, the court added the following comment:
"It must be emphasized that, where such tainted information
comprises more than a
very minor portion of that found in
an affidavit supporting a warrant to search, the warrant must be
held invalid."
Id. at 35 (emphasis in original). The other case is
United States v. Nelson, 459 F.2d 884 (1972), where the
affidavit for a search warrant relied on information derived from
two prior warrantless searches. Although the court suggested
several reasons for suppressing the evidence seized pursuant to the
warrant, the principal basis seems to have been the finding that
the untainted allegations did not constitute probable cause. Thus,
neither case contradicts the decisions of the District of Columbia,
Third, Fifth, Eighth, and Ninth Circuits cited in the text.
[
Footnote 2/7]
The majority seems to believe that this principle, while fully
applicable to original wiretap orders, is wholly inapplicable to
extension orders. This, at least, is the most reasonable
construction of the majority's discussion of §§ 2518(1)(e) and (f).
Ante at
416 U. S.
532-533. Those provisions require that an application
for an extension order include "a full and complete statement of
the facts concerning all previous applications" and "a statement
setting forth the results thus far obtained from the interception.
. . ." According to the majority, the fact that law enforcement
authorities complied with §§ 2518(1)(e) and (f) by including in the
application for the extension order information regarding the
earlier wiretap necessarily and automatically rendered the
extension order invalid, regardless of whether the independent and
untainted information in the application for the extension
satisfied the requirements of the Fourth Amendment and §
2518(3).
With all respect, I find this a baffling interpretation of the
statute. Certainly there is nothing in the language or history of
§§ 2518(1)(e) and (f) to suggest that Congress intended these
provisions to except all extension orders from the independent
source doctrine. Nor is there any suggestion in the language or
history of § 2515, which is the statutory analogue to the
constitutional doctrine of the fruit of the poisonous tree, that
Congress intended to distinguish between original wiretap orders
and extension orders in determining the extent of the suppression
remedy. Finally, there is nothing in logic to indicate why Congress
would have wanted to make such a distinction, and there is no basis
in reason to suppose that Congress, if it had intended such a
result, would have failed to leave any evidence of that intent.
[
Footnote 2/8]
The detailed information lawfully obtained through surveillance
and undercover work was aptly summarized in � 77 of the affidavit
supporting the extension order:
"Giordano exhibits the characteristics of a high-level narcotics
trafficker -- extreme caution. When traveling, he continually uses
various counter-surveillance techniques. In his transactions, he
limits his contacts to a small number of trusted individuals."
App. 81.