During a criminal investigation, the Government secured a series
of court orders authorizing electronic surveillance of respondents,
as mandated by Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. § 2510
et seq. Section
2518(8)(a) requires, in pertinent part, that: (1) recording "shall
be done in such way as will protect the recording from editing or
other alterations"; (2) "[i]mmediately upon the expiration of the
period of the order, or extensions thereof," the recordings are to
be made available to the judge who issued the order and sealed
under his directions; and (3) "[t]he presence of the seal . . . or
a satisfactory explanation" for its absence is a prerequisite for
the use or disclosure of the evidence obtained from the recordings.
Among the orders obtained was an April 27, 1984, order for the
surveillance of respondent Ojeda Rios' Levittown, Puerto Rico,
residence and some nearby public telephones, which was extended
until July 23 when he moved to another community. On July 27, the
Government obtained a new order covering his new home, which, with
extensions, expired on September 24. On October 13, three days
after the expiration of an order authorizing surveillance of Ojeda
Rios' car, all of the Ojeda Rios tapes were sealed. The Government
also obtained an order authorizing it to wiretap two public
telephones in Vega Baja, effective January 18, 1985, but that order
expired on February 17. A new order, issued on March 1, expired on
May 30, and the Vega Baja tapes were sealed on June 15. After they
were indicted for various offenses, respondents moved to suppress
the evidence obtained as a result of,
inter alia, these
wiretaps. The District Court suppressed the Levittown and Vega Baja
tapes based solely on a delay in their sealing. The court found
that the July 27 order authorizing the wiretap of Ojeda Rios' new
residence was not an extension of the Levittown order, and
therefore there was at least an 82-day delay -- starting July 23 --
in sealing the Levittown tapes. Similarly, the March 1 Vega Baja
order could not be considered an extension of the January 18 order,
because of the delay in seeking the extension and the Government's
failure to satisfactorily explain the delay. Thus, there was a
118-day delay in the sealing of those tapes. The Court of Appeals
affirmed.
Page 495 U. S. 258
Held:
1. Section 2518(8)(a) applies to a delay in sealing, as well as
to a complete failure to seal tapes. Its primary thrust is to
insure the reliability and integrity of evidence obtained by means
of electronic surveillance, and the sealing requirement is
important precisely because it limits the Government's opportunity
to alter the recordings. The narrow reading suggested by the
Government -- that, since tapes must either bear a seal or the
Government must provide a "satisfactory explanation" for the seal's
"absence," the "satisfactory explanation" requirement does not
apply where the tapes actually bear a seal, regardless of when or
why the seal was applied -- is not a plausible interpretation of
congressional intent, since § 2518(8)(a) requires not just any
seal, but one that has been obtained
immediately upon
expiration of the underlying surveillance order. The Government's
view would create the anomalous result that the prosecution could
delay requesting a seal for months without risking a substantial
penalty. Pp.
495 U. S.
262-264.
2. The "satisfactory explanation" language requires that the
Government explain not only why a delay occurred but also why it is
excusable. The Government's submission -- that the requirement is
satisfied if it first explains
why the delay occurred and
then demonstrates that the tapes are authentic -- would nullify the
requirement's function as a safeguard against tampering, and is
foreclosed by the provision's plain words. The fact that the
Government has an incentive to seal tapes immediately to avoid
lengthy pretrial suppression hearings is no more than a statement
that only rarely would there be a delay, and does not answer the
issue posed where there is a delay that is not satisfactorily
explained. Moreover, the argument is suspect, since early sealing
does not foreclose a challenge to authenticity, which would also
require lengthy proceedings. Pp.
495 U. S.
264-265.
3. This case is remanded for a determination whether the
Government's explanation to the District Court substantially
corresponds to the one it now advances: that the delays were the
result of a good faith, objectively reasonable misunderstanding of
the statutory term "extension," based on the supervising attorney's
interpretation of two Circuit cases which he believed indicated
that the Government was not required to seek sealing until there
was a meaningful hiatus in the investigation as a whole. Those
cases support the conclusion that this theory was an objectively
reasonable, although incorrect, interpretation of the law at the
time of the delays, and to the extent that the Court of Appeals
required the Government to prove that its interpretation of the law
was absolutely correct, it held the Government to too strict a
standard. Nonetheless, the explanation is not "satisfactory" within
the meaning of the statute unless it was actually advanced at the
suppression hearing to explain
Page 495 U. S. 259
the delays, a question not addressed by the Court of Appeals.
Pp.
495 U. S.
265-267.
875 F.2d 17, vacated and remanded.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined. O'CONNOR, J., filed a concurring opinion, in which
BLACKMUN, J., joined,
post, p.
495 U. S. 267.
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined,
post, p.
495 U. S.
268.
Justice WHITE delivered the opinion of the Court.
This case arises under Title III of the Omnibus Crime Control
and Safe Streets Act of 1968,
as amended, 18 U.S.C. § 2510
et seq., (Title III), which regulates the interception of
wire, oral and electronic communications. Except under
extraordinary circumstances,
see 18 U.S.C. § 2518(7),
electronic surveillance may be conducted only pursuant to a court
order.
See 18 U.S.C. §§ 2518(1)-(6). Section 2518(8)(a)
requires that
"[t]he contents of any wire, oral, or electronic communication
intercepted by any means authorized by this chapter shall, if
possible, be recorded on tape or wire or other comparable
device"
and that recording "shall be done in such way as will protect
the recording from editing or other alterations." The section
further provides that
"[i]mmediately upon the expiration of the period of the order,
or extensions thereof, such recordings shall be made available to
the judge issuing
Page 495 U. S. 260
such order and sealed under his directions."
Ibid. Section 2518(8)(a) has an explicit exclusionary
remedy [
Footnote 1] for
noncompliance with the sealing requirement, providing that
"[t]he 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,
oral, or electronic communication or evidence derived therefrom
under subsection (3) of section 2517. [
Footnote 2]"
Ibid.
In this case, a series of court orders authorized electronic
surveillance. The tapes later offered in evidence bore seals, but
the seals on the tapes at issue here had not been immediately
attached, as required by the statute. The issue we address is
whether § 2518(8)(a) requires suppression of those tapes.
Respondents are members of a Puerto Rican organization known as
Los Macheteros (the "machete wielders"). All have been charged with
federal crimes relating to the robbery in 1983 of a Wells Fargo
depot in Connecticut, a robbery which netted approximately $7
million. Petitioner (the Government) first began investigating
respondents in connection with a rocket attack on the United States
Courthouse in Hato Rey, Puerto Rico. Effective April 27, 1984, the
Government obtained an order of electronic surveillance for the
residence of Filiberto Ojeda Rios in Levittown, Puerto Rico, and
for some public telephones near the residence. During its
investigation of the rocket attack, the Government discovered
evidence
Page 495 U. S. 261
indicating that respondents had been involved in the Wells Fargo
depot robbery. The Government obtained two extensions of the April
27 surveillance order, with the final extension expiring on July
23, 1984. The Government actually terminated surveillance at the
Levittown residence and public telephones on July 9, 1984, when
Ojeda Rios moved to an apartment in El Cortijo, a community
adjacent to Levittown. On July 27, 1984, the Government obtained a
new surveillance order covering Ojeda Rios's El Cortijo residence.
After extensions, that order expired on September 24, 1984. Another
surveillance order authorizing surveillance of Ojeda Rios's car,
originally entered on May 11, 1984, was extended and finally
expired on October 10, 1984. All tapes created during the
surveillance of Ojeda Rios were sealed by the District Court on
October 13, 1984.
As part of the Wells Fargo robbery investigation, the Government
obtained a court order on November 1, 1984, authorizing it to
wiretap a residence shared by Juan Segarra Palmer and Luz Berrios
Berrios in Vega Baja, Puerto Rico. The District Court extended that
authorization order each month for seven months, with the last
extension expiring on May 30, 1985. The Government also obtained a
court order authorizing it to wiretap two public telephones in Vega
Baja, effective January 18, 1985. That order expired on February
17, 1985, and, due to difficulties in finishing the affidavit
necessary to obtain an extension, the Government did not apply for
an extension until March 1, 1985. The District Court issued a new
order on that date. The order was thereafter extended twice, and
finally expired on May 30, 1985. All tapes from the Vega Baja
wiretaps were judicially sealed on June 15, 1985.
After respondents were indicted for various offenses relating to
the Wells Fargo depot robbery, they moved to suppress all evidence
the Government had obtained as a result of electronic surveillance.
Following a suppression hearing,
Page 495 U. S. 262
the United States District Court for the District of Connecticut
refused to suppress the El Cortijo and Vega Baja residence tapes,
but suppressed the Levittown tapes and the public telephone tapes
made in Vega Baja. In doing so, the District Court determined that
the July 27, 1984, order authorizing the wiretap at the El Cortijo
residence was not an extension of the April 27, 1984, order
authorizing the Levittown wiretaps and, therefore, the obligation
to seal the Levittown tapes arose when the last extension of the
April 27 order expired on July 23, 1984. The court calculated that
there had been at least an 82-day delay in sealing the Levittown
tapes. With respect to the public telephone wiretaps in Vega Baja,
the court determined that the March 1, 1985, order could not be
considered an extension of the initial January 18, 1985, order --
which had expired on February 17, 1985 -- because of the 12-day
delay in seeking reauthorization of the January 18 order and the
Government's failure to satisfactorily explain that delay. The
court calculated that the sealing of the tapes on June 15, 1985,
occurred 118 days after the order which authorized the surveillance
had expired. Without determining the authenticity of these two sets
of tapes, the District Court suppressed them on the basis of the
delay alone.
The United States Court of Appeals for the Second Circuit
affirmed the suppression of the tapes, rejecting the Government's
explanation for the sealing delays. Because the scope and role of
the sealing provision of Title III has generated disagreement in
the lower courts, we granted certiorari, 493 U.S. 889 (1989), and
now vacate and remand.
The Government first argues that, because § 2518(8)(a) states
that, as a prerequisite to admissibility, electronic surveillance
tapes must either bear a seal or the Government must provide a
"satisfactory explanation" for the "absence" of a seal, the
"satisfactory explanation" requirement does not apply where the
tapes to be offered in evidence actually bear
Page 495 U. S. 263
a seal, regardless of when or why the seal was applied. This
argument is unpersuasive. The narrow reading suggested by the
Government is not a plausible interpretation of congressional
intent when the terms and purpose of § 2518(8)(a) are considered as
a whole. The section begins with the command that tapes shall be
sealed "immediately" upon expiration of the underlying surveillance
order and then, prior to the clause relied upon by the Government,
provides that "the seal
provided for by this subsection"
(emphasis added) is a prerequisite to the admissibility of
electronic surveillance tapes. The clear import of these provisions
is that the seal required by § 2518(8)(a) is not just any seal, but
a seal that has been obtained
immediately upon expiration
of the underlying surveillance order. The "absence" the Government
must satisfactorily explain encompasses not only the total absence
of a seal, but also the absence of a timely applied seal. Contrary
to what is so plainly required by § 2518(8)(a), the Government
would have us nullify the immediacy aspect of the sealing
requirement.
The primary thrust of § 2518(8)(a),
see S.Rep. No.
1097, 90th Cong., 2d Sess., 105 (1968), and a congressional purpose
embodied in Title III in general,
see, e.g., United States v.
Giordano, 416 U. S. 505,
416 U. S. 515
(1974), is to ensure the reliability and integrity of evidence
obtained by means of electronic surveillance. The presence or
absence of a seal does not, in itself, establish the integrity of
electronic surveillance tapes. Rather, the seal is a means of
ensuring that, subsequent to its placement on a tape, the
Government has no opportunity to tamper with, alter, or edit the
conversations that have been recorded. It is clear to us that
Congress viewed the sealing requirement as important precisely
because it limits the Government's opportunity to alter the
recordings.
The Government's view of the statute would create the anomalous
result that the prosecution could delay requesting a seal for
months, perhaps even until a few days before trial, without risking
a substantial penalty. Since it is likely that a
Page 495 U. S. 264
district court would automatically seal the tapes, [
Footnote 3] there would be no "absence"
of a seal, in the sense suggested by the Government, and §
2518(8)(a) would not come into play, even though the tapes would
have been exposed to alteration or editing for an extended period
of time. Such a view of the statute ignores the purposes of the
sealing provision, and is too strained a reading of the statutory
language to withstand scrutiny. Like every Court of Appeals that
has considered the question, we conclude that § 2518(8)(a) applies
to a delay in sealing as well as to a complete failure to seal
tapes. [
Footnote 4]
The Government's second contention is that, even if §
2518(8)(a)'s "satisfactory explanation" requirement applies to
delays in sealing tapes, it is satisfied if the Government first
explains
why the delay occurred and then demonstrates that
the tapes are authentic. This submission, however, also is not a
sensible construction of the language of § 2518(8)(a), and would
essentially nullify the function of the sealing requirement as a
safeguard against tampering. The statute requires a
satisfactory explanation, not just an explanation. It is
difficult to imagine a situation in which the Government could not
explain why it delayed in seeking to have tapes sealed. Even
deliberate delay would be enough, so long as the Government could
establish the integrity of the tapes; yet deliberate delay could
hardly be called a satisfactory explanation. To hold that proof of
nontampering is a substitute for a
Page 495 U. S. 265
satisfactory explanation is foreclosed by the plain words of the
sealing provision.
It is true that offering to prove that tapes are authentic would
be consistent with Congress's concern about tampering, [
Footnote 5] but, even if we were
confident that tampering could always be easily detected, we would
not be at liberty to agree with the Government, for it is obvious
that Congress had another view when it imposed the sealing
safeguard.
The Government contends that it has an incentive to seal tapes
immediately, because otherwise, even under its proposed test, it
will face lengthy pretrial suppression hearings in which it must
establish the authenticity of tape recorded conversations. This is
no more than a statement that only rarely would there be a delay,
and does not answer the issue posed where there is a delay that is
not satisfactorily explained. Furthermore, the incentive argument
is suspect, since timely sealing, as the Government concedes, Tr.
of Oral Arg. 10-11, 22-23, does not foreclose a challenge to
authenticity, which in any event would require lengthy
proceedings.
We conclude that the "satisfactory explanation" language in §
2518(8)(a) must be understood to require that the Government
explain not only why a delay occurred, but also why it is
excusable. This approach surely is more consistent with the
language and purpose of § 2518(8)(a).
Finally, we must consider whether the Government established
good cause for the sealing delays that occurred in this case. The
Government contends in this Court that its delays were the result
of a good faith, objectively reasonable misunderstanding of the
statutory term "extension." According to
Page 495 U. S. 266
the Government, the attorney supervising the investigation and
electronic surveillance of respondents believed that he was not
required to seek sealing of the tapes until there was a meaningful
hiatus in the investigation as a whole. In arguing that this
understanding of the law was objectively reasonable, the Government
relies primarily on two Second Circuit cases interpreting the
statutory term "extension."
In one case, the Second Circuit held that an electronic
surveillance order that was entered at least 16 days after a prior
order had expired was to be regarded as an "extension" within the
meaning of § 2518, because it "was clearly part of the same
investigation of the same individuals conducting the same criminal
enterprise" as was being investigated under the prior order.
United States v. Principie, 531 F.2d 1132, 1142, and n. 14
(CA2 1976),
cert. denied, 430 U.S. 905 (1977). In a
subsequent case, again involving a gap between the expiration of an
order and an "extension," the court indicated that, under the
circumstances presented, later orders could be deemed extensions of
prior ones, and stated that, where an
"intercept is of the same premises and involves substantially
the same persons, an extension under these circumstances requires
sealing only at the conclusion of the whole surveillance."
United States v. Scafidi, 564 F.2d 633, 641 (CA2 1977),
cert. denied, 436 U.S. 903 (1978).
These cases do not establish that the Government's asserted
understanding of the law in this case was correct; indeed, the
Second Circuit's decision in this case indicates the contrary, but
the cases do support the conclusion that the "extension" theory now
pressed upon us was objectively reasonable at the time of the
delays. Thus, we conclude that the excuse now advanced by the
Government is objectively reasonable. In establishing a reasonable
excuse for a sealing delay, the Government is not required to prove
that a particular understanding of the law is correct, but rather
only that its interpretation was objectively reasonable at the
time. To the extent the Second Circuit in this case required an
absolutely
Page 495 U. S. 267
correct interpretation of the law, we think it held the
Government to too strict a standard.
Nevertheless, we must remand this case for further proceedings.
A "satisfactory explanation" within the meaning of § 2518(8)(a)
cannot merely be a reasonable excuse for the delay presented at the
appellate level. Rather, our review of the sufficiency of the
Government's explanation for a delay should be based on the
evidence presented and submissions made in the District Court.
Therein lies the problem in this case. Whether the supervising
attorney actually advanced the Government's "extension" theory in
the District Court is not clear.
Compare App. 4-5 (no
sealing required for an ongoing investigation until a "meaningful
hiatus" occurred),
and id. at 26-27 (same),
with
id. at 36 (separate orders viewed as extensions of an
interrelated investigation),
and id. at 40 (same). Thus,
even though the misunderstanding now pressed by the Government was
objectively reasonable, that explanation is not "satisfactory"
within the meaning of the statute unless it was relied on at the
suppression hearing to explain the sealing delays. Because the
Second Circuit did not address this threshold question, the case
must be remanded for a determination of whether the Government's
explanation to the District Court substantially corresponds to the
explanation it now advances.
The judgment of the United States Court of Appeals for the
Second Circuit is vacated, and the case remanded for further
proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
Title III also contains a general suppression remedy, not
applicable in this case, that provides for suppression when
electronic communications have been unlawfully intercepted, were
intercepted pursuant to a court order that is facially invalid, or
were not intercepted in conformity with the order of authorization.
See 18 U.S.C. § 2518(10).
[
Footnote 2]
Section 2517(3) provides that
"[a]ny person who has received, by any means authorized by this
chapter, any information concerning a wire, oral, or electronic
communication, or evidence derived therefrom intercepted in
accordance with the provisions of this chapter may disclose the
contents of that communication or such derivative evidence while
giving testimony under oath or affirmation in any proceeding held
under the authority of the United States or of any State or
political subdivision thereof."
[
Footnote 3]
Nothing in section 2518(8)(a) itself clearly indicates whether
district courts have any authority or discretion to deny a
governmental request for sealing. The Government suggested at oral
argument that district courts may have such authority, but did not
indicate that, if so, they have ever exercised it. Tr. of Oral Arg.
9. Respondents' countered that, under the statute, district courts
have a mandatory duty to seal tapes, regardless of the timing of
the request.
Id. at 36-37, 47.
[
Footnote 4]
See, e.g., United States v. Gigante, 538 F.2d 502,
506-507 (CA2 1976);
United States v. Johnson, 225
U.S.App.D.C. 33, 42, 696 F.2d 115, 124 (1982);
United States v.
Massino, 784 F.2d 153, 156 (CA2 1986);
United States v.
Mora, 821 F.2d 860, 864-865 (CA1 1987).
[
Footnote 5]
It also is true that some Courts of Appeals have agreed with the
Government in this respect.
See, e.g., United States v.
Falcone, 505 F.2d 478, 484 (CA3 1974);
United States v.
Sklaroff, 506 F.2d 837, 840-841 (CA5 1975);
United States
v. Cohen, 530 F.2d 43, 46 (CA5 1976);
United States v.
Lawson, 545 F.2d 557, 564 (CA7 1975);
United States v.
Diadone, 558 F.2d 775, 780 (CA5 1977);
McMillan v. United
States, 558 F.2d 877, 878-879 (CA8 1977);
United States v.
Angelini, 565 F.2d 469, 471-473 (CA7 1977). As explained
above, we read § 2518(8)(a) differently.
Justice O'CONNOR, with whom Justice BLACKMUN joins,
concurring.
I join the Court's opinion on the understanding that a
"satisfactory explanation" within the meaning of 18 U.S.C. §
2518(8)(a) cannot merely be a reasonable excuse for the delay; it
must also reflect the actual reason for the delay. Thus, as the
Court today holds, an appellate court's review of
Page 495 U. S. 268
the sufficiency of the Government's explanation for a delay
should be based on the findings made and evidence presented in the
district court, rather than on a
post hoc explanation
given for the first time on appeal.
See ante at
495 U. S. 267.
With this understanding, I agree with the Court that this case
should be remanded for a determination whether the Government's
explanation to the District Court for the delay -- not the
explanation offered on appeal -- meets the "satisfactory
explanation" standard.
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.
The failure to comply with the sealing requirements of Title III
was the unfortunate consequence of a Government lawyer's good
faith, but incorrect, understanding of the law. Whether such a
mistake should constitute a "satisfactory explanation" for the
failure is, as both the District Court and the Court of Appeals
recognized, a close question. Both of those courts resolved their
doubts in favor of requiring strict compliance with a statute that
was carefully drawn to protect extremely sensitive privacy
interests. I think their resolution of the issue was correct.
[
Footnote 2/1]
Page 495 U. S. 269
The ordinary citizen is often charged with presumptive knowledge
of laws even when they are complex and confusing. A similar
presumption should apply to a federal prosecutor responsible for
insuring that a prolonged and extensive program of electronic
surveillance is conducted in compliance with the law. Moreover,
when issues turn on the details of such an investigation -- in this
case involving 1,011 tapes made pursuant to 8 separate orders and
17 extensions -- I believe we should give special deference to the
consistent evaluations of the record by the District Court and the
Court of Appeals. Chief Judge Oakes succinctly stated the concern
that is decisive for me:
Page 495 U. S. 270
"We think that unfortunately the failure to seal the Levittown
tapes here resulted from a disregard of the sensitive nature of the
activities undertaken. The danger here is, of course, that today's
dereliction becomes tomorrow's conscious avoidance of the
requirements of law. The privacy and other interests affected by
the electronic surveillance statutes are sufficiently important, we
believe, to hold the Government to a reasonably high standard of at
least acquaintance with the requirements of law."
875 F.2d 17, 23 (CA2 1989). [
Footnote 2/2]
Accordingly, while I agree with the Court's rejection of the
Government's construction of Section 2518(8)(a), I would affirm the
judgment of the Court of Appeals. [
Footnote 2/3]
[
Footnote 2/1]
The Court acknowledges that the prosecutor's understanding of
the law was incorrect.
Ante at
495 U. S. 266.
However, the Court posits that, at the time of this investigation,
it was "objectively reasonable" to interpret § 2518(8)(a) to treat
wiretap orders issued after an order covering the same suspects or
locations expired as extensions of the earlier order. The legal
sufficiency of this excuse, which relies on
United States v.
Principie, 531 F.2d 1132 (CA2 1976),
cert. denied,
430 U.S. 905 (1977), and
United States v. Scafidi, 564
F.2d 633 (CA2 1977),
cert. denied, 436 U.S. 903 (1978), is
debatable for three reasons.
First,
Principie addressed a different provision of
Title III, 18 U.S.C. § 2518(8)(d), which requires written notice to
suspects within 90 days of "the termination of the period of an
order or extensions thereof." The
Principie court treated
a wiretap order that was issued four days after the expiration of
an order directed at the same suspects at a previous location to be
"an extension" within the meaning of this section. While enforcing
notice under § 2518(8)(d) is informed by concerns for prematurely
exposing an investigation, sealing under § 2518(8)(a) carries no
such risk. To the contrary, the underlying concern for the
integrity of tapes and accurate recordkeeping supports sealing as
early as possible. The
Scafidi court applied
Principie's definition of extension to a sealing delay,
but held alternatively that, if the later orders could not be
considered extensions, the reasons for the brief delay met the
rigorous reading of § 2518(8)(a) established in
United States
v. Gigante, 538 F.2d 502 (CA2 1976).
Second, because a judge of the Federal Court of the Commonwealth
Puerto Rico issued the surveillance and sealing orders, the
District Court below held that the
"law of the first circuit controlled where a material difference
exists between the sealing requirements in the first and second
circuits."
United States v. Gerena, 695 F.
Supp. 649, 657-658 (Conn.1988). The First Circuit has not
applied
Principie to subsequent orders in Title III notice
or sealing cases. It has construed § 2518(8)(a)'s sealing
requirement strictly, and identified a series of factors to measure
the sufficiency of an explanation of delay.
United States v.
Mora, 821 F.2d 860 (CA1 1987). Both the District Court and
Second Circuit used the
Mora factors in sustaining the
suppression of the Levittown and Baja Vega tapes. 695 F.Supp. at
657-658; 875 F.2d 17, 22-23 (CA2 1989).
Finally, the general rule -- as stated in the treatise used by
the prosecutor in this case -- is that,
"[a]lthough Title III delays the sealing and notice deadline
when the initial warrant is extended, it does not postpone those
deadlines when a new warrant is obtained on a different phone or
premises."
Fishman, Wiretapping and Eavesdropping § 190 (1978);
id. at 282, n. 8 (acknowledging
Principie as an
exception to notice deadlines in a footnote). Prosecutor Bove did
not recall what cases he consulted, but did recall using the
Fishman treatise. App. 35, 40, 42-44.
[
Footnote 2/2]
Cf. United States v. Giordano, 416 U.
S. 505,
416 U. S. 527
(1974) ("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").
[
Footnote 2/3]
If a "satisfactory explanation" did exist, I would agree that a
remand to determine that it was in fact "the actual reason for
delay" would be required.
Ante at
495 U. S. 267
(O'CONNOR, J., concurring).