BYNUM v. U.S.,
423 U.S. 952 (1975)

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U.S. Supreme Court

BYNUM v. U.S. , 423 U.S. 952 (1975)

423 U.S. 952

Elvin Lee BYNUM et al. v. UNITED STATES.
No. 74-1445.

No. 74-6411.

Supreme Court of the United States

November 11, 1975

On petitions for writs of certiorari to the United States Court of Appeals for the Second Circuit.

The petitions for writs of certiorari are denied.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL concur, dissenting.

The 'minimization' provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides that every order and extension thereof authorizing electronic surveillance shall 'contain a provision that the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . ..' 18 U.S.C. 2518(5) ( 1970). This 'minimization' provision, together with other safeguards, e. g. , 2518(3)(a), (b), (c), (d), constitutes the congressionally designed bulwark against conduct of authorized electronic surveillance in a manner that violates the constitutional guidelines announced in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967). Congress has explicitly informed us that the 'minimization' and companion safeguards were designed to assure that 'the order will link up specific person, specific offense, and specific place. Together [the provisions of Title III] are intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise and discriminate circumstances, which fully comply with the requirement of particularity.' S.Rep. No. 1097, 90th Cong., 2d Sess., 102 (1968), U.S. Code Cong. & Admin.News 1968, p. 2112. These cases afford the Court a particularly appropriate vehicle for fashioning principles to guide authorizing judges in administering the 'minimization'

Page 423 U.S. 952 , 953

provision-guidance which is absolutely essential if the congressional mandate to confine execution of authorized surveillances within constitutional and statutory bounds is to be carried out.

The urgent need for guidance from this Court clearly emerges from the record in these cases. For the record fairly bristles with apparent instances of indiscriminate and unwarranted invasions of privacy of nontargets of the surveillance.

Two telephones at the home of a friend of petitioner Bynum were the subjects of surveillance orders. The orders authorized federal narcotics agents to overhear and electronically record incoming and outgoing conversations of 'Bynum and others as yet unknown.' The order as extended for one telephone was for a period of 34 days, and the order for the second telephone covered the last 20 days of that period. The judge who authorized the surveillance left administration of the 'minimization' provision to the monitoring agents, being of the view that the facts of the massive narcotics conspiracy under investigation precluded per se surveillance guidelines promulgated by him and that minimization would be better achieved by allowing the agents discretion in determining what should be intercepted. But the monitoring agents were not informed by the judge or their superiors of this decision. Rather, Mr. Updike, the Assistant United States Attorney who supervised the surveillance, testified that the agents were instructed to intercept all but privileged attorney-client communications:

    'And with respect to the actual operation of the intercept, my instructions were that they were to record everything except what any inspector felt was a privileged communication, and as to those they were to report to me when anything of that nature occurred or felt somthing of that nature occurred. [423 U.S. 952 , 954]

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