*1 DALIA v. UNITED STATES Argued January April 18, No. 77-1722. 1979 Decided *2 J., opinion Court, in which C. J., Btjkgek, delivered Powell, joined and in Parts I and II JJ., and BlacemtjN, RehNquist, and White, J., an JJ., joined. BrenNAN, filed BrennaN and of which Stewart, J., dissenting part, in concurring part Stewart, which opinion dissenting post, p. J., filed joined except I, 259. Stevens, as to Part post, p. JJ., joined, opinion, in which Marshall, Brennan brief Buprecht filed a Louis argued the cause and petitioner. Frey argued General cause for
Deputy Solicitor General brief were Solicitor him on States. With C. Heymann, William McCree, Attorney General Assistant Getter, Jerome M. Feit. Bryson, Kenneth S. opinion Court. delivered
Mr. Justice Powell Control and of the Omnibus Crime Safe Streets permits (Title §§2510-2520, Act of 1968 18 U. C. III), *3 by Government electronic surveillance1 courts authorize by took case writ specified officers in situations. We this types purpose same and effect: of electronic surveillance have the All forth in interception of communications. As the Court set the secret Berger however, surveillance York, (1967), 45-47 this v. New 388 U. S. ways. performed quite surveillance is performed in two different Some interception is confined to the of communication “wiretapping,” which may by telephone telegraph generally performed be from outside and and description, Note, see premises to be monitored. For a detailed Interception: and Postsearch Minimization of Wire Preseareh Guidelines (1974). in the Remedies, 1411, 1414 n. 18 At issue 26 Stan. L. Rev. commonly “bugging,” present case is the form of surveillance known given in a interception includes the of all oral communication which accomplished interception typically is wiretapping, location. this Unlike bugged microphone of a small the room to installation nearby McNamara, The Problem of to some receiver. See transmission Entry Eavesdrops: Do You Surreptitious Effectuate Electronic How Says (1977); “Yes”?, After the Court Am. Crim. L. Rev. Proceed Organized Blakey, Aspects Gathering Crime of the Evidence Process Preliminary Analysis, reprinted Commission on Cases: A in the President’s Report: Justice, Force (cid:127)Law Enforcement and Administration Task C, 92, (1967). bugging Organized Crime, App. wiretapping Both regulated (1) are under Title III. C. §§ certiorari to resolve questions concerning two implemen- tation First, surveillance orders. 439 U. 817. S. may courts requires authorize electronic surveillance that entry2 private covert into premises for installation necessary equipment? for such Second, must authorization specific surveillance include a it by the court that statement approves entry?3 of the covert
I
On March
14, 1973,
Department
applied
Justice
officials
the United States District
Court
the District of New
Jersey, seeking authorization
inter-
§
under 18
C. 2518 to
cept telephone
petitioner’s
conversations
telephones
on two
business office. After examining the
submitted in
affidavits
support of the
request,
Government’s
the District Court au-
wiretap
thorized the
period
days
for a
of 20
or until
purpose of
interception
was achieved, whichever came first.
The court
probable
found
petitioner
cause to believe that
was
a member
conspiracy
of a
purpose
of which was to steal
goods being shipped in interstate commerce in violation of 18
U.
C. §
Moreover,
court found reason to believe
petitioner’s
telephones
business
being
were
used to further
conspiracy
this
and that
means
investigating
conspiracy
2 Every
necessarily
electronic surveillance
is “covert” in
sense
“hidden;
secret; disguised”
must be
to be effective. Webster’s New
*4
Dictionary
(2d
1953).
International
613
here,
ed.
As
entry”
used
“covert
physical entry by
refers to the
a law
private
enforcement officer into
premises
permission
without
the owner’s
knowledge
in order to install
bugging equipment. Generally,
require
such an
will
breaking
a
and
entering.
infra,
See discussion
at 253-254.
3The
Appeals
given
Federal Courts of
conflicting
have
to
answers
questions.
these
See United States
Finazzo,
(CA6
v.
"[T]he “(a) probable Larry There cause to believe that Dalia and others yet unknown, committing involving are have committed and offenses theft shipments, Code, from interstate of Title violation United States *5 in a five- indicted petitioner was 1975, On November 6, in involved that he had been charging indictment count receipt goods, in of Title 659; of stolen violation sale or Section or 2315; commerce threats and interference Code, Section States Code, 1951; Section and violence, Title United States in violation of in of Section 371 of conspiring commit such offenses violation are Code. United States particular and oral probable wire “(b) is cause to believe that There through these concerning be obtained these offenses will communications applied. particular, for which herewith interceptions, authorization robbery of will the theft communications concern and oral these wire sale, receipt, transportation, commerce, and the moving in goods interstate participants goods, and in storage, of these stolen or distribution offenses. of said commission unlikely reasonably appear investigative procedures to be “(c) Normal dangerous used. to be and are too succeed of office the business to believe “(e) probable cause There is (15) fifteen consisting room, approximately Larry Dalia, an enclosed of northwesterly comer in dimension, (18) in and situated feet eighteen Ltd., Machinery Company, building housing Wrap-O-Matic one-story aof Avenue, George St. at 1105 West and located Packaging, Precise and by Larry Dalia and used, being used Jersey, and is been Linden, New has of commission the above- with the yet in connection unknown as others offenses. described hereby that: ordered
“WHEREFORE, it is Investigation, United States Federal Bureau Agents of the “Special Justice, . . .to: are authorized Department of yet Dalia, as Larry and others “(b) Intercept oral communications office business at the offenses concerning unknown, the above-described (15) fifteen approximately room, consisting enclosed Larry of an Dalia, northwesterly dimension, situated feet by eighteen (18) Machinery Com- housing one-story Wrap-O-Matie building of a corner George St. West Packaging, and located Ltd., Precise pany, Jersey. Linden, New Avenue, type automatically terminate when interceptions shall not “(c) Such (b) first (a) have paragraphs above described communication intercepted are communications until continue obtained, but shall been yet unknown Larry and others Dalia in which manner reveal the which *6 conspiracy shipment to steal an of interstate fabric.5 At trial, Government introduced showing peti- evidence had approached tioner been in March 1973 and asked to Jersey store his New warehouse “a load of merchandise.” petitioner Although declined the request, he directed the party requesting to he Higgins, associate, an with whom to agreed storage share the $1,500 fee that was offered. The merchandise stored under this proved contract to be a tractor- trailer full of fabric worth $250,000 that three men stole on April 1973, transported and 3, Higgins’ to warehouse. Two days after FBI agents the theft, Higgins arrested and the robbery. individuals involved in the
The Government introduced petitioner’s into at evidence trial various intercepted pursuant conversations to the court participate in shipments; theft from interstate receipt sale of stolen goods; and violence; interference with commerce threats or and which confederates, places reveal identities of his operation, their of and conspiracy therein, period nature of the involved or for a twenty (20) of days Order, from date of this whichever is earlier. THAT, intercept “PROVIDING this and wire authorization to oral practicable signing communications shall be executed as soon as after way this Order and shall be conducted in such a as to minimize interception subject interception of communications not otherwise under Chapter 119 Code, of Title 18 of the United States and must terminate upon objective, any attainment of the event, authorized at the end [or] in twenty days (20) from the date of this Order. Attorney ALSO, Special
“PROVIDING M. James Deichert shall report provide fifth, day the Court with a tenth, on the and fifteenth following showing progress the date of this Order what has been made objective toward achievement the authorized and the need for continued interception.” charged petitioner Count one conspiring transport, others with receive, possess goods stolen 2, 2314, violation 18 U. S. C. §§ 2115, charged petitioner Count conspiring and 659. two and others with commerce in (b)(1). to obstruct interstate violation of 18 U. C. § petitioner charged transported three goods; Count had stolen count charged goods; charged four that he had received stolen and count five petitioner possession of stolen goods. April Intercepted April of March
orders arranged had telephone petitioner showed that conversations helped nego- had storage Higgins’ for the warehouse and telephone conversation tiate the terms for that One storage. petitioner clear that place that took after arrest made Higgins’ “sit robbery given had advice others involved the Government tight” telephone. Finally, and not to use peti- from transcripts intercepted introduced of conversations these April bugging tioner’s office under the order. *7 partici- conversations,, petitioner had discussed with various con- pants robbery proceed in to after their the how best to inference federates been The unmistakable had arrested. petitioner’s in these conversations drawn from statements the he an in to steal participant is that was active the scheme truckload of fabric. suppress
Before evidence obtained trial, petitioner moved means through interception by the of conversations in District denied the device installed his office. The Court being its renewed suppression prejudice motion without counts,6 on two petitioner trial. After was convicted following evidentiary his motion and court held an he renewed the device hearing the method which the electronic concerning al- hearing that, been At this was shown had installed. April explicitly the court did not authorize though order the entry agents of FBI petitioner’s assigned the business, implementing petitioner’s of the order had entered office task April spent and hours in secretly midnight at on had three ceiling. in All installing bug an electronic the building petitioner May ended on 16, 1973., electronic surveillance petitioner’s re-entered office and agents which time the bug. removed the petitioner’s suppress a second time motion to denying the bug, obtained from the trial court ruled
the evidence receiving goods conspiring stolen Petitioner was convicted possess goods. supra. transport, receive, stolen n.
that under Title a entry covert to install electronic eavesdropping equipment merely is not unlawful because the approving court explicitly the surveillance did authorize entry. such an Supp. 426 F. Indeed, court’s view, “implicit [authorizing order elec- court’s tronic is concomitant authorization for agents surveillance] covertly premises question enter the install necessary equipment.” Id., at 866. As court concluded the FBI agents who had installed the electronic device executing were lawful court, issued the sole warrant question was whether they the method for execution chose was reasonable. Under the found the court circumstances, petitioner’s covert office to have been “the safest and most accomplishing successful method of installation.” Ibid. Indeed, noting petitioner indicated himself had only such could device have been through installed such an entry, the court observed that most cases the “[i]n form of installing such through devices is and enter- breaking ing. The nature of the that entry act such must be sur- reptitious and must not arouse suspicion, and the installation must be done without knowledge the residents or *8 occupants.” Ibid.
The
Appeals
Court of
for the Third
peti-
Circuit affirmed
tioner’s conviction.
II Petitioner first contends that the Fourth Amendment pro- entry private premises hibits covert in all cases, irrespective entry the reasonableness of the or the approval of a court. He contends that is unconstitutional insofar as it enables courts to authorize covert entries for the installation of electronic bugging devices.
In several cases this Court has implied some cir- cumstances covert entry to install electronic bugging devices would be constitutionally acceptable if done pursuant a search warrant. Thus, example, Irvine California, v. 347 U. S. (1954), plurality stated in conducting electronic surveillance, police state officers “flagrantly, had deliberately, persistently prin- violated fundamental ciple declared the Fourth Amendment as a restriction on the Federal Id., Government.” It emphasized that the bugging equipment was installed through covert of the defendant's home “without search warrant or other Ibid, process.” (emphasis added). Similarly, Silverman v. United States, 365 S. 505, U. 511-512 it was noted (1961), “ Court has [t]his never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, secretly there observe listen, and relate at the subsequent man’s criminal trial what was seen or heard.” (Emphasis added.) Implicit in decisions such as Silverman and Irvine has been the Court’s view that covert entries are constitutional in some circumstances, at if they least are made pursuant to warrant.
Moreover, we find no basis for a constitutional
rule pro
scribing all covert entries.
It
is well established that
law
officers constitutionally may break and enter to execute a
search warrant
such entry
where
is the
means
which
effectively
warrant
may be executed. See,
g., Payne
e.
announce provoke would an announcement if such search authorized 7 evidence.” of critical suspect or the destruction escape of the Donovan, (1977), n. 19 429 429 States United constitutionally adequate provided held that we sur once the by requiring that for advance notice substitute must authorizing judge completed operation veillance subjected to surveillance. on those notice to be served cause why the There is no reason (8)(d). § 18 U. S. C. respect to electronic equally sufficient with notice is not same there entry. explicit, We make covert requiring surveillances with implicit dealing in our decisions long what has been fore, se prohibit per The Fourth Amendment does subject: this installing other entry purpose for the performed covert equipment.8 bugging electronic legal wise validity authority One has said that the constitutional covert entries consequence reasoning” bugs plainly the of Katz v. to install “is [the] Interpretation Taylor, States. T. Two Studies in Constitutional that, argues if be constitutional Petitioner even a covert would case, cases, present not in the as there was no need for such in some it was entry. Court, specifically however, The found that the “safest District accomplishing the wire and most successful method of the installation of entering through breaking and 426 F. tapping device was [the office].” (1977). Moreover, order, issuing the Title III the court Supp. reasonably investigative procedures appear found that -“[formal unlikely App. 7a. And in dangerous and are too to be used.” succeed subsequent denying petitioner’s suppression opinion motion, the same his judge stated: ques- application supported which for the warrant in
“The affidavits surveillance, meetings tion indicated that resort to electronic overhear required telephones, office and conversations on Dalia’s was at Dalia’s identify working goods, of Dalia’s those him to the sources stolen property, scope conspiracy. Oral transport and store stolen and the enterprise this criminal was available inside Dalia’s evidence premises.” Supp., F. at 866. business therefore, Court, required concluded that
The District the circumstances
249 III Congress Petitioner’s second contention is that has given statutory authority approve the courts entries covert purpose electronic installing equipment, surveillance if constitutionally even it could have done so. Petitioner emphasizes III although Title forth with meticulous sets care the circumstances in which electronic surveillance there permitted, comparable is no indication in the statute United States may that covert ever be ordered. Accord, Santora, (CA9 v. 583 F. 2d 457-458 1978). 453, explicitly entry.
Title does not refer to covert The language, history and dem- however, structure, statute, onstrate that meant Congress to authorize courts —in certain specified approve circumstances —to electronic surveillance without limitation on necessary accomplish- the means to its ment, long they so are reasonable under the circumstances. III provides comprehensive Title for the regulation scheme of electronic surveillance, prohibiting interception secret all except communications as authorized certain state and judges in response applications specified federal from fed- eral and state law enforcement officials. See 18 U. C. S. States United States Dis- 2518; and 2511, 2515, §§ Court, trict (1972). U. 301-302 Although Congress S. fully was of the distinction aware between and bugging wire- see 90th tapping, Rep. No. 2d Cong., (1968), Sess., III by its deals terms with each form of surveillance essentially manner. the same See U. 2510 (1) §§ S. C. supra. (2); authorizing interceptions n. Orders either may wire or oral communications be entered after the court specific has made determinations the likeli- concerning interception will hood disclose evidence of criminal conduct. § C. 2518 respect See U. S. Moreover, an wiretapping to both and bugging, authorizing court must approach officers, nothing brings used in the record this question. conclusion into enu- scope undertaken, of the surveillance
specify exact be over- merating parties whose communications are to they place monitored, are to be (if known), heard C. monitoring. agency that will do the *11 (4). §2518 of plain
The effect of the detailed restrictions 2518 is to § only there guarantee bugging occurs when wiretapping that only it is is a need for it and to the extent that genuine in accord needed.9 Once this need has been demonstrated broad author requirements with the the courts have § ity “approv[e] interception of wire or oral communica 18 consti tions,” subject §§ U. 2516 course to (1), (2), S. C. in Title tutional II, supra.10 limitations. See Part Nowhere III any under authority is there indication that the of courts approving § 2518 is to be limited to those methods of inter ception that do require entry not covert for installation of the equipment.11 intercepting public It is clear that III Title serves a substantial interest. n. Congress recognized, however, and this Court have that electronic
infra. privacy surveillance can be a law-abiding threat to the “cherished subjected supervision prescribed by citizens” unless it is to the careful Title III. Court, See United States United States District 10Congress explicitly power confirmed the breadth of the it had con acting ferred on courts under Title III when it amended the Act in 1970. Pub. 91-358, II, (b), L. Title (4) 84 Stat. 654. Section 2518 now §211 empowers authorizing a court electronic surveillance to “direct that a . . . landlord, person custodian or other applicant shall furnish the forthwith all information, facilities, necessary accomplish technical assistance interception unobtrusively added.) (Emphasis Thus, appears Congress that anticipated that may landlords and custodians be enlisted to aid covertly law enforcement officials place necessary to enter and equipment private areas. places The limitation Title III on the manner in which these court requirements orders are to be executed is in its that no order extend beyond days, every provisions order must include that it is to practicable be executed as soon as and in a manner that wifi minimize the
The legislative history of III Title Congress’ underscores understanding courts would authorize electronic surveil- lance in situations where private premises covert was necessary. a close Indeed, history examination of that reveals that Congress did explicitly not question address the of covert entries in the Act, only because it did perceive surveillance requiring such entries to any differ in important way from performed without entry. Testimony before subcom- mittees considering Title III and related bills indicated that covert entries were a necessary part of most bugging electronic operations. g., e. See, Program: Anti-Crime Hearings on H. R. 5037, etc., before Subcommittee 5 of No. the House Committee on the 90th Judiciary, Cong., 1st Sess., (1967). More- over, throughout Report Senate on indiscriminate reference is made to types of surveillance this Court in Berger York, reviewed New *12 v. (1967), U. S. States, Katz v. United 347 (1967). See, g., e. Rep. No. 1097, supra, 74-75, 97, at Apparently 101-102, 105. Committee members did find significant Berger not it that involved a covert entry, whereas Katz did not. Compare Berger York, v. New supra, Katz United supra, at 348.12
It is understandable, therefore, by that III the time Title interception of purview communications not within the of the order. See (5). 18 U. S. C. §2518 12Indeed, the nature of Berger electronic surveillance in involved v. New York was mentioned on the Senate, floor of the when Long Senator ob served that under the law, police New York judicial could “obtain war authorizing rants them bugs to hide in premises suspects.” of criminal 114 Cong. Rec. 14708 sure, To be in his Long comments Senator explicitly did suggest that III would authorize such covert entries. post, at 272. His statement confirmed, however, what had been strongly prior indicated to the bill’s by Congress: consideration the full Congress simply Members saw no distinction between electronic surveil required lance which entry covert required and that which tapping covert telephone. of one’s The privacy invasion of the is conversation same in both situations. Members who those Congress, on the floor of was discussed understanding entries indicated their referred to covert necessarily part bugging be a authorized such entries would support voicing example, for his Thus, under Title III. difficulties Tydings emphasized III for Title Senator necessary equipment: upon installing attendant must very Tape difficult to use. [sic] “[S]urveillance strung. Bugs are on and wires telephones, be installed entry surreptitious in many places since install difficult entry is Often, more than one impossible. is often necessary adjust equipment.” Cong. Rec.
(1968) (emphasis added). cannot assume that simply the face of this one record, entry, requires aware most covert Congress, bugging en- such except requiring nonetheless wished to surveillance and that III, tries from broad authorization of Title subject. On the remaining resolved to do so silent on convey III contrary, language history quite of Title explanation distinguish failure to Congress’ different requires covert and that between surveillance legislation considering which does not: Those the surveillance that, authorizing interception understood electronic of oral they communications, communications addition to wire necessarily authorizing surreptitious were entries.
Finally, Congress’ purpose enacting statute would be if largely accept petitioner’s thwarted we were to invitation authority to read into Title a limitation on the courts’ *13 Congress permitted under limited electronic § surveil- under Title because it concluded lance that both wire- necessary bugging were to enable law enforcement tapping successfully to combat certain authorities forms crime.13 13 specifies 18 U. C. 2516 Title S. that authorization for electronic sur § may sought respect with to certain veillance enumerated crimes. espionage, sabotage, treason, kidnaping, robbery, These include extortion, murder, corrupt practices, counterfeiting. According various to the
253
Absent
entry,
bugging
covert
almost all electronic
however,
impossible.14
Ford,
would be
414
Supp.
United States v.
F.
See
879,
(DC
aff’d,
App.
S.
D. C.
2d
1976),
U.
F.
146 (1977);
Entry
McNamara,
Surreptitious
The Problem of
Report
Senate
concerning
III,
Title
offense has been chosen either
“[e]ach
intrinsically
because it is
op-
serious
because it is characteristic of the
organized
Rep.
erations of
Cong.,
crime.” S.
90th
2d
Sess.,
No.
(1968). The need
against
for use of electronic
organized
surveillance
crime
had
thoroughly
been
shortly
Congress
considered and documented,
before
began considering
III, by
special organized-crime
Task Force of a
charged
considering
Presidential Commission
United
crime
States. The President’s Commission on Law Enforcement and Administra-
Justice,
Report: Organized
tion of
(1967);
Task Force
Crime 91-104
see
United
Court,
States v. United States District
S.,
407 U.
at 310
9. A
n.
summary of
appeared
the Task Force’s conclusions
in the Commission’s re-
port,
repeatedly
which was
during
referred to
consideration of Title III.
See The President’s Commission on Law Enforcement and Administration
of Justice,
Challenge
Society
The
of Crime in a Free
200-203
Congress, proponents
III,
hearing
testify
of Title
after
numerous witnesses
concerning
importance
fighting organized
of electronic surveillance in
“
crime,
colleagues
recommended the
[legislation meeting
bill to their
standards
[Supreme
decisions,
constitutional
set out in
Court]
granting law
authority
tap
enforcement officers the
telephone
wires and
install
investigation major
electronic surveillance devices in the
crimes.”
Rep.
1097, supra,
75;
id.,
Indeed,
No.
Report
see
at 74.
the Senate
unequivocally
on Title III
major purpose
stated that
of title III
“[t]he
organized
Id.,
is to
rapid
combat
crime.”
developments
at 70. The
technology
available
the criminal underworld make it all the more im-
perative
“deny
that the
prudent
Government not
to itself the
and lawful
employment
very techniques
of those
which are employed against the Gov-
law-abiding
ernment and its
citizens.” United States v. United States
Court, supra,
District
at 312.
14Although
authority,
he cites no
apparently
be
Mr. Justice
SteveNS
practicable
lieves that a
alternative to covert
would be installation of
bugging
through subterfuge.
devices
post,
at 272.
Nowhere in
legislative history
any
of Title III is
Congress
there
indication that
wished
to limit its
bugs
authorization
through
installed
subterfuge. Moreover,
perceive why
is difficult to
one
gaining entry
means of
would be less
See,
g.,
intrusive than another.
Ford,
e.
Supp.
States v.
414 F.
(DC 1976), aff’d,
App.
(1977) (bomb-
D. C.
to (1977). Am. L. Rev. 3 Says “Yes”?, 1, 15 Crim. After the Court commission established recently congressional 1976, As as III concluded of Title study the effectiveness and evaluate performed cannot be that in most cases electronic surveillance being monitored. See premises into the without covert of Federal and State for Review U. National Commission S. Surveillance, and Electronic Relating Wiretapping Laws The 15, 19, Electronic Surveillance n. Association reached the American Bar same conclusion was governing use charged formulating committee standards Project ABA on Minimum electronic surveillance. See 65 n. Justice, for Criminal Electronic Surveillance Standards 1971).15 (App. Draft clearly understood sum, Congress we conclude that authorize covert conferring power upon it the courts to was ancillary responsibility approve entries to their to review and To read the stat- applications surveillance under the statute. deny “respect policy ute would be to for the otherwise Congress imputing must save us from a self- [that] defeating, disingenuous purpose.” if not Nardone v. United (1939).16 308 U. S.
IV if are to Petitioner’s final contention is covert entries that, authorizing be authorized under Title court must III, intercept from Those few available devices conversations outside building many impractical, cost, of a cases either because of relia are bility, configuration being U. of the area monitored. See Relating National Commission for Review of Federal and State Laws Surveillance, Wiretapping and Electronic Commission Studies 168-183 (1976); see, g., Ford, Supp., e. United States v. 414 F. at 881. approve As we have concluded that Title authorizes courts to equipment, covert entries to install electronic surveillance we do not authority consider such whether also is conferred other federal enact ments, Act, such Fed. Rule 41 or the All Crim. Proc. Writs 28 U. S. C. §
explicitly set forth approval its of such entries before the fact. case, this as is customary, court’s order constituted the sole written authorization of the surveillance of petitioner’s office. As it did not state in terms that the surveillance was to include a covert entry, petitioner insists that the entry his violated Fourth Amendment privacy rights. Accord, Ford, States v. 180 S.U. App. C.,D. 553 F. 25, 2d, at 170; Application United 563 2dF. 644 637, (CA4 1977).17
The Fourth Amendment
requires that search warrants be
issued only “upon probable cause, supported by Oath or affir
mation, and particularly describing
place
to be searched,
persons
or things to be seized.” Finding these words
to be “precise and clear,”
Texas,
v.
379 U.
476,
481
Stanford
(1965), this Court has interpreted them require
only three
things. First, warrants must be issued by neutral, disinter
magistrates.
ested
g.,
e.
See,
Connally Georgia,
v.
429 U. S.
245, 250-251 (1977)
(per curiam); Shadwick v. Tampa,
(1972); Coolidge v. New Hampshire,
459 — 460 (1971). Second, those seeking the
warrant must demonstrate to
magistrate
their probable
cause to believe that “the evidence sought will aid in a
particular apprehension or conviction” for particular
offense.
Warden v. Hayden,
tioner’s would the office bugging offenses,” of [these] mission concerning communications “oral interception in the result *16 location the exact Moreover, App. 6a-7a. offenses.” these 4,n. see forth, set were office petitioner’s of dimensions and to the restricted was the search of the and extent supra, Dalia Larry communications oral “[i]ntercept[ion of] offenses above-described the concerning unknown, yet others 8a.18 App. . .”. Larry Dalia . office business at 5 order April nevertheless, contends, Petitioner failure its for Amendment Fourth under insufficient was covert of a by means executed be would specify a indicia of III, ah of Title requirements of of the strict Because is issued. Title III under an order whenever necessarily present are warrant J., concur (Gurfein, 2d, Scafidi, 564 F. States Accord, United Title under design to create express Congress’ Indeed, it was ring) . Amendment Fourth under valid warrants by which search mechanism supra 1097, Rep. No. S. See surveillance. electronic be issued would Enforce Law Through Effective More Controlling Crime 105; 13, at n. Laws Criminal on Subcommittee etc., before on S. Hearings ment: Cong., 1st Judiciary, 90th on the Committee Senate Procedures Subcom 5037, etc., before H. Hearings on R. (1967); 176, 570, 919 Sess.,. Cong., 1st Judiciary, 90th on the Committee the House 5 of mittee No. the court authoriza required for less would No Sess., constitutional, as elec III to be under surveillance of electronic tion requiring Amendment intrusion undeniably Fourth is a surveillance tronic 352-353, 356- U. v. United g., See, e. Katz a warrant. necessity of warrant recognized the explicitly have we (1967). And States Dis v. United States surveillance. of electronic cases 316-320. S., at Court, 407 U. trict his office. Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that, addition to the three requirements discussed above, search warrants also must a specification include precise manner in they which are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with per- formance aof search authorized subject of warrant19 — course to the general Fourth protection Amendment “against unreasonable searches and seizures.”
Recognizing that
the specificity
required
the Fourth
Amendment does not generally extend to the means by which
warrants are executed, petitioner further argues that warrants
for electronic surveillance are unique because often they
impinge upon two different Fourth Amendment
interests:
The surveillance itself interferes only with the right
to hold
private conversations, whereas the entry subjects the suspect’s
property
possible
damage
personal
effects to unauthor-
ized examination. This view of the Warrant
parses
Clause
too
finely the
protected
interests
by the Fourth Amendment.
Often in executing a warrant
police
may find it necessary
to interfere with privacy rights not explicitly considered by
*17
the judge who issued the warrant. For
police
example,
exe-
an
cuting
arrest warrant commonly find it necessary to enter
19For example, courts
upheld
have
the use of forceful breaking and
entering
necessary
where
to effect a
search,
warranted
though
even
the
gave
warrant
no indication
force
that
had been contemplated. See,
g.,
e.
United States v. Gervato,
the movement. freedom privacy both on impinge thereby 421 406, Cravero, 545 F. 2d States v. g., United e. See, Similarly, officers rehearing). for petition (on 1976) (CA5 property damage must on occasion warrants search executing v. States United g., e. duty. See, their perform to order v. States United 1977); (CA5 305 304, 2d Brown, 556 F. 864 U. S. 414 denied, cert. (CA3), 41 Gervato, 40, 2d F. 474 require to extreme the Clause the Warrant extend It would Amendment Fourth likely that reasonably is whenever that, must court the way, one than in more affected be rights may by the followed procedures the precisely forth set unnecessary, is interpretation an Such officers. executing man- concedes—that Government held —and we have judicial to later subject is is executed a warrant in which ner Daily, Zurcher v. See Stanford reasonableness. as to its review would we important, More (1978).20 559-560 magistrates require towe were formalism empty promote bugging implicit is unquestionably explicit what make inter- attendant its entry, with a covert that authorizations: necessary may be interests, Amendment Fourth ference See equipment. the surveillance the installation 1976). We (Md. Supp. London, F. States does Amendment Fourth that therefore, conclude, include order surveillance III electronic a Title require was present case covert found Court The District once twice: office petitioner's entered officers The reasonable. their indication There no it. remove once to bug and install necessary and remove to install beyond was what went intrusion supra. equipment. 8,n. See order that its specifically noted Court case, District present contrary Thus, supra, entry. at 246. covert implicitly authorized had question is no 270 n. there post, dissent, see suggestion to the *18 enter at will authority to break Executive’s “of the in this case authorization.” any judicial without
specific authorization to enter covertly the premises described in the order.22
The judgment of the Court of Appeals
Affirmed. Mb. Justice Brennan-, with whom Me. Justice Stewart joins except as to Part I, concurring part and dissenting in part.
I concur in Parts I II of the Court’s opinion.
I I dissent from Part III for the reasons stated in the dissent- ing opinion of Mr. Justice Stevens which I join.
II I also dissent from Part IY. In my view, even reading Title III to authorize covert entries, the Justice Department’s present practice of securing specific authorization for covert entries is preferable, see ante, this page n. but also constitutionally required.
Breaking and entering into private premises for the purpose a planting bug cannot be characterized as a mere mode of warrant execution to be left to the discretion of the executing officer. See ante, at 257. The practice entails an invasion
22Although explicit authorization of the entry is not constitutionally required, agree dowe with the Court Appeals "preferable approach” would be for agents Government in the future to explicit make to the authorizing court their expectation that some form of surreptitious required will be carry out the surveillance. Indeed, the Solicitor General has informed us that Department adopted Justice has policy requiring its officers “[to] include applications [in for Title III request orders] that the order providing for the interception specifically authorize surreptitious entry for purpose of installing and removing any electronic interception devices to be utilized in accomplishing the oral interception.” See Brief for United States 56.
260 from distinct significance privacy of constitutional is tan surveillance; indeed, nontrespassory
which attends rooms First, search seizure. independent to an tamount entry and surreptitious for the need may bugged be without United Lopez v. premises. See physical private invasion dissent States, (1963) (Brennan, J., 427, 373 U. 467-468 S. before long practice condemned ing) entry, covert a Second, . Silverman v. see eavesdropping, we condemned unwarranted States, as well United physical breaches (1961), 365 U. 505 itself, or office privacy. The home conversational as id., is4, n. place castle,” which is a man’s “inviolate intrusive and particularly practice is Third, invaded. hands and it leaves naked to the susceptible to abuse since simple beyond reach of eyes government agents items eavesdropping. to covert of these intrusions
Because attendant additional agents who requires government the Constitution entries, specific judicial private premises wish break into first secure Authority for the surreptitious entry. for the authorization III order physical invasion cannot derived from Title a authorizing electronic surveillance. executing Fourth an officer Amendment confines
“[T]he strictly warrant,” search warrant within bounds set Agents, Six Unknown Narcotics Bivens v. Fed. 388, 403 U. S. (1971), 394 n. 7 in order to deemed assure that those “searches Coolidge New necessary as limited possible.” v. [remain] Texas, Hampshire, v. Stanford Marron v. (1965); 379 U. S. (1927).* As warrant that describes consequence, a Cravero, United States upon 406, 421
*The Court’s reliance 2d 545 F. (CA5 (on 1976) petition proposition rehearing), opposite for the Cravero, police misplaced. anticipated the need to could not have suspect arrest at his home at the time the arrest warrant was issued. unreasonable, therefore, require It would have been warrant specify Here, by easily a home contrast, arrest. the covert was why agents There is no foreseeable. reason the federal who secured only the seizure expansively conversations cannot be read to authorize constitutionally distinct physical invasions of privacy at the discretion of the executing officer. Rather, Constitution demands that necessity for home invasion be *20 “by decided a neutral and magistrate detached instead of being judged by the officer in engaged competitive the often States, enterprise of ferreting out crime.” Johnson v. United 333 U.
I agree cannot that adherence to principle this would amount to “specification of precise the manner” in which ante, orders are executed. See The war- rant could, consistent with the of the Fourth command Amendment, leave the of details how best proceed with the covert to the discretion of the executing officers. The warrant only need state, as under present Depart- Justice ment practice, that “surreptitious entry purpose for the of in- stalling and removing any electronic interception devices [is] to be accomplishing the oral interception.” Ante, utilized at 259 n. 22.
Nor can I agree that adherence to the strictures of the War- rant and Particularity of Clauses the Fourth Amendment would amount ante, to “empty formalism.” at 258. premises Since may bugged be through means less drastic than home invasion, requiring police to prior approval secure for covert may prevent well entries unnecessary improper and intrusions. In any event, present may case not ap- pear particularly abusive justify cannot Court’s crabbed interpretation of the Fourth Amendment. Mr. Justice Brad- warrant could have advised judge who issued they the warrant contemplated entry. Indeed, covert the current Department prac- Justice tice of securing specific prior authorization for covert entries demonstrates the practicability of prior-authorization requirement. constitutional United States Gervato, v. (CA3 2dF. 1973), distinguish is able for the same reason and also because Gervato involved a mere mode of (forcible warrant entry) execution rather than an invasion of two separate expectations privacy. of greater even ago has century almost ley’s admonition governmental intrusive more of ever today’s world cogency privacy: invasions mildest in its thing obnoxious it is the may be
“It unconstitu- and but form; illegitimate repulsive least namely, way, footing in that their first get practices tional legal from slight deviations approaches by silent obviated be can This procedure. modes provisions constitutional rule that adhering to con- liberally be should property person security them deprives construction and literal A close strued. depreciation gradual leads to efficacy, and their of half in sub- than sound consisted more if right, as for the watchful duty of courts It stance. any against citizen, and rights of constitutional Boyd thereon.” stealthy encroachments *21 Beennan Justice whom Mr. with Stevens, Me. Justice dissenting. join, Marshall Justice Mr. persons three April 5-6, 1973, night of on the midnight At secretly office and business petitioner’s a open window pried they hours next three During premises. entered lis- implanting eventually building, freely about moved they again later, weeks ceiling. Several tening device the device. removed night at the office broke into of agents were break-ins of these perpetrators The car- however, office, Their Investigation. Bureau Federal property. private on to trespass general it no warrant ries the conduct these sanction, judicial or legislative Without pro- and therefore “unreasonable” unquestionably agents was conduct Moreover, that Amendment.1 Fourth by the hibited The Court, United States District States v. provides: Fourth Amendment houses, papers, persons, secure in their right people to be “The Jersey violated the Criminal Code of the unless State New duly was authorized.2 The arguably might legitimate consideration that these “otherwise possibly tortious of peti- criminar’ invasions tioner’s private property,3 is the fact a federal had judge entered order authorizing an agents to use equip- electronic to intercept ment oral petitioner’s communications office. The order, however, equipment did not describe the kind to be used and made no reference entry, to an covert otherwise, private into property. any Nor statute does expressly permit such activity or even authorize federal judge to enter granting orders federal agents a license com- mit criminal trespass. question The initial raises, this case therefore, whether power this kind of should be read into a statute does expressly grant it.
In my opinion, there are three each reasons, sufficient itself, for refusing to do Congress so. until First, has stated duty our otherwise, protect rights of the individual sway should hold over the interest in more' effective law en- forcement. Second, the structural detail of pre- this statute cludes a reading that converts silence into Third, thunder. legislative history affirmatively demonstrates Con- gress never contemplated the situation now before the Court.
I “Congress, like this Court, has an obligation obey mandate of the Fourth Barlow’s, Amendment.” Marshall v. *22 Inc., 436 U. S. 334 307, J., dissenting). But Con- (Stevens, gress is better equipped than the Judiciary to empiri- make the effects, against and unreasonable searches and seizures, shall not be vio- lated, issue, and no upon probable Warrants shall but cause, supported by Oath affirmation, or particularly describing place searched, the to be persons things the or to be seized.” 2 §§2A:94-1, N. J. Stat. (West 1969). Ann. 2A:9-3 Taylor,
3 T. Two Studies in Interpretation Constitutional 110 investigative previously a unauthorized judgment cal between “reasonable” accommodation technique represents a Amendment and by Fourth protected the privacy interests Throughout history, our there law enforcement.4 effective granting lead in that has taken the Congress it has been fore, appro privacy.5 citizen’s It is authority invade the new has Congress whenever it deference to priate special to accord investigatory technique a need for new expressly balanced the any intrusion on con consequences of against the undesirable id., at privacy. stitutionally protected interests 334-339. intru- comparable given no should be federal
But deference expressly on that are not Con- privacy sions authorized important for my view, proper respect Congress’ gress.6 Leasing Corp. States, 353; 338, United Cf. G.M. v. United 429 U. S. Corp. Biswell, 311; Catering v. v. Colonnade States States, 72, 397 U. July 31, 1789, 43, concluding “Beginning 29, with the Act of Stat. 1968, Omnibus Crime Control and Safe Streets Act of 82 Stat. with the 197, 219, 238, Congress has enacted series of over 35 different statutes judges power granting federal to issue search of one form or warrants they These have one in common: are another. statutes characteristic grants authority specific in their and in their inclusion of limitations on objects require places searched, search, to be of the either the ments for the issuance of a warrant.” United States v. New York Tele phone J., (foot Co., 159, dissenting part) 179-180 S.U. (Stevens, omitted). note gathered pre-1945 dissenting
Mr. Justice Frankfurter statutes in his opinion in Davis v. United 328 U. S. 616-623. He commented significant legislation recognition about this is the Con- “[w]hat necessity Congressional gress specific authorization even for moving goods search vessels and other vehicles and the seizures of tech- nically Id., n. contraband.” Mapp Ohio, applied
6 I realize that since the Court has principles the same Fourth Amendment to state and federal law enforce purposely my Nonetheless, ment officers alike. I limit discussion here to purposes necessity statutory federal context. For discussing authority, concept it seems useful to me to Fourth treat Amendment
role in this area, as well as our interpreting tradition of stat- utes to avoid issues,7 constitutional compels this conclusion.
The Court does not share this
For this
the third
view.
is
many
in
years
time
it has condoned a
intrusion
that
serious
on privacy that was not explicitly
authorized
statute and
admittedly
raised
substantial
question.
constitutional
In United States v. Ramsey,
upheld
U.
the Court
S.
an
regulation
Executive
authorizing postal inspectors
open
private letters
probable
they
without
cause to believe
con-
United States New York Telephone
tained contraband.8
Co., upheld
the Court
authorizing
orders
surreptitious pen-register
of an
surveillance
individual and
directing
private company
in
to lend its assistance
no
Again,
explicit statutory
endeavor.
authority existed
either
despite
order,
Congress’
comprehensive
otherwise
treat-
ment of wire
surveillance
of the Omnibus Crime
Control and Safe
(Title III).9
Streets Act of 1968
enough
reasonableness as flexible
recognize
differences between state
police
and federal courts
Thus,
power
forces.
because the
Federal
crime,
jurisdiction
Government to combat
courts,
like the
of its
is
comparable
more
power
jurisdiction
limited than the
inhering
in the
States,
logical
is
governmental
the federal context to assume that
authority
lacking
expressly
unless
legislation. See,
g.,
mandated
e.
Palmore v. United
389, 396; Cheng
411 U. S.
INS,
Fan Kwok v.
206;
392 U.
Gambling
S.
United States
Devices,
v. Five
346 U.
7See McCulloch v. Sociedad
Honduras,
Nacional de Marineros de
10;
Street,
U.
740;
S. Machinists v.
Larche,
367 U. S.
Hannah v.
Murray
430;
Charming Betsy,
v. The
II implicitly The Court’s conclusion that the statute authorizes breaking especially is anomalous entering because statutory respects in other and ex- scheme all exhaustive
10Although office, this case involves an the invasion aof home would statutory precisely raise the same issue. 11“Congress exacting precision. drafted principal As its [Title III] sponsor, put McClellan, Senator it: “ requires bill as controversial this ... dotting close attention '[A] to the every crossing every “i” and Cong. “t” . . . Rec. 14751 [114 (1968).]
“Under circumstances, these provide the exact words of the statute guide determining Congress’ intent, surest and we would do well to confine ourselves to that Donovan, area.” United States v.
441 (Burger, J., concurring part C. part). dissenting conclude sense”13 to make does not simply “It
plicit.12 (1) process minutely detailed Congress having— Attorney General any Assistant Attorney General, “[t]he follow must Attorney General” designated specially sur- an electronic to seek officers authorizing police federal offenses suspected number of (2) the limited order,14 veillance must be showing that (3) the order,15 an justify will such (4) the order,16 before he issues judge” “a Federal made to infra, accompanying. text 249-250; 13-18, ante, at nn. cogently Circuit, observed: Merritt, writing the Sixth Judge As *25 authority for Congressional imply sense to simply does not make “It statute even single line or word when not a official break-ins power the scope the less or defines possibility, much limits the mentions normally conduct, unlaw- such under which the circumstances or describes in Olmstead Holmes and Brandéis may the dissents of ful, place. As take ‘dirty,’ serious, if not a suggest, this is a States, 277 U. S. 438] [v. imply break in power the to we should business; we do not believe Congress has not argues, when statute, government as the under the clearly. expressed an intention such debated the issue and confronted and may be bug not circumstances, of an electronic the installation “In some suspect’s premises, breaking entering the possible a forcible without power enter is subsumed to break and imply does not that the but that the breaking entering aggravates the words. The the warrant to seize weighed privacy interests search, upon property and and it intrudes independent social value statutory scheme, which have in the interests govern- to the speech. give are not inclined confidential We unrelated to by conduct- upon these interests right by implication to intrude ment the secretly is to monitor break-ins, especially purpose ing when official carefully power private conversations, dangerous otherwise a and record Finazzo, 2d 583 F. statute.” United States v. limited and defined Santora, (CA6 1978). 583 F. 2d United States 841-842 See also (CA9 1978). 456-466
14 18U. S. C. §2516 (1) (a)-(g). 15 18U. S. C. §§ inter authorizing approving application or “Each for an order upon writing ception shall be made of a wire or oral communication judge jurisdiction and shall state competent oath to a or affirmation standard the judge apply must in approving, and the format he must follow preparing, order,17 (5) the time frame of execution and the manner of execution with respect applicant’s authority to make such application. application Each 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, justify his belief that an order should be issued, including (i) particular details as to the offense been, that has being, is or is about to be committed, (ii) particular description of the nature and location the facilities from place which where the communication is to be intercepted, (iii) a particular description of the type of communi- sought cations to be intercepted, (iv) identity of the person, known, if committing the offense and whose communications are to be intercepted; "(c) a full and complete statement as to whether or not investiga- other procedures tive have been tried and why failed or they reasonably appear unlikely to succeed if tried or to be too dangerous; “(d) a statement of period of time for which interception required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when type described of communication has been first obtained, 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 previous all applications known the individual authorizing and making applica- *26 the tion, made any to judge for authorization to intercept, approval or for interceptions of, wire or oral involving any communications of the same persons, places facilities specified or in the application, and the action taken by judge the 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 explanation reasonable of the failure to obtain such results.” 18 U. S. C. §2518(1). 17“(3) Upon such application judge the may enter an ex parte order, requested as or modified, as authorizing or approving interception of wire or oral communications within the jurisdiction territorial of the court in which the judge is sitting, if judge the determines on the basis of the facts submitted applicant the that— “(a) probable there is cause for belief that an individual is committing, likely to not of communications interception minimizing the recently more having criminal even activity,18 involve by which those means certain “unobtrusive” specified (6) enumerated particular offense committed, to commit a or is about has chapter; 2516 of this section particular communications
“(b) belief that probable there is cause for interception; through such concerning that offense will be obtained or failed investigative procedures been tried have “(c) normal have dangerous; unlikely too reasonably if tried or to be appear to be to succeed which, from or the facilities “(d) probable cause for belief that there is intercepted be are are to place where, wire or oral communications the the commission of used, used, in with the being to be connection or are about commonly of, used offense, to, or are listed the name such or leased person. such any interception of wire “(4) authorizing approving or the Each order — n specify or communication shall oral are identity person, known, communications “(a) of the if whose the intercepted; be as to facilities
“(b) of the communications nature and location authority intercept granted; place is which, where, or the sought be “(c) particular description type of the of communication relates; to which it intercepted, particular of the offense and a statement identity intercept the communica- “(d) agency authorized to of the person authorizing application; and tions, and of the authorized, interception is during such “(e) period of which time interception auto- shall including as to whether or a statement first communication has been matically described terminate when the obtained_” (3), C. §§ may approve this section authorize order entered under “No any period longer than any for interception oral communication wire or authorization, any objective nor in event necessary to achieve may granted, but thirty days. of an order longer Extensions than (1) subsection application made in accordance with upon for an extension (3) required by findings subsection making this section and the court longer than the shall be no period of extension of this section. The necessary purposes for which authorizing judge deems to achieve thirty days. Every order longer than granted in no event was provision the authorization shall contain a thereof and extension shall be conducted practicable, intercept as soon shall be executed not other- way interception of communications minimize the *27 as to such of the might out without the awareness orders be carried with police officers leave national suspect19 content to —was any in resulting orders authority carry out unbounded to the “subject of course they and obtrusive fashion chose unspecified Ante, to at 250.20 constitutional limitations.” subject interception upon chapter, under this and must terminate wise thirty days.” any objective, attainment of the authorized or event (5). 18 U. S. C. §2518 custody procedures storage protective
The statute also details for the and resulting tapes, (8) (a)-(c), of the disclo- for authorized C. §§ 2517, tapes court, sures both in and of 18 U. C. and uses the out §§ (9), persons and for whose conversations were after-the-fact notice (8) (d). overheard. 18 U. S. C. 2518 § following provision The was added to Title III in 1970: authorizing interception order the communication
“An a wire or oral shall, request upon applicant, direct that a communication common carrier, landlord, person applicant custodian or other furnish the shall information, facilities, necessary to forthwith all and technical assistance unobtrusively accomplish interception the and with a minimum inter- carrier, custodian, person ference landlord, with the services that such or according person intercepted. Any is whose communications are to be carrier, landlord, person communication common custodian or other furnishing compensated such facilities or technical assistance shall be by applicant prevailing therefor at the rates.” 18 U. S. C. 2518 § analyzes problem authority The simply Court this one of Judicial Ante, agree under the statute. at 10. if I n. Even could judges authority respect Title III afforded “broad” and unconfined break-ins, problem, I would still be left with never mentioned Court, authority any of the Executive’s to break and enter without at will judicial authorization.
Indeed, any I am not at all puts certain that on Court confines authority either area, despite lip Judicial Executive this service pays For, having “breaking “constitutional limitations.” stated constitutionally entering” per in execution of a search warrant is missible such “where means which the warrant effec tively may executed,” ante, (emphasis added), at 247 the Court then equates warrant, supra a surveillance order with a search Taylor, but see 84-85, n. a break-in upon showing allows under the former merely successful,” that the break-in was “the safest and most rather than “only,” installing method Supp. device. F.
In my view, it is opposite conclusion is true to the that statutory structure. For simply “one cannot assume that ante, Congress,” see at 252, wished to procedural erect various against poor barriers judgment part on the Attorney General and his subordinates in part on the seeking, and federal district judges issuing, eavesdropping orders to commit their execution, through illegal even to means, entirely judgment “the and moderation of officers whose own interests and records are often at Brinegar stake the search.” dissenting). (Jackson, J., The detailed timing and on minimization restrictions executing officer, supra, see n. well as 1970 amend- ment III concerning to Title “unobtrusive” n. execution, see 19, supra, inescapably Congress lead to the conclusion that withheld authority trespass private to property except on through the expressly limited means with in dealt the statute.21
Ill Only one relevant conclusion can from a review of be drawn the entire legislative history legislators of Title III. The they passing never even possibility considered the that were would agents statute that authorize federal to break into private premises any finding necessity by without neutral magistrate. and detached
A meager legislative The remarks that are said to demonstrate Title Ill’s supporters implicitly breaking endorsed Congress 21 A temporal was careful limit the extent of electronic opportunity (i. e., infringe protected surveillance for it to on noncriminal) conversations, quick and one so to amend the statute provide entry through private persons (i. e., for “unobtrusive” the aid of “landlords”) already degree “custodians” and who have a of access to the surely property, cannot have condoned unlimited and unauthorized break ing entering by police burglar’s nothing officers the aid of but a tools. actually provide listening install devices
entering in order to for that conclusion. support no [police] authorizing warrants “judicial
The reference ante, see premises suspects/’ of criminal bugs hide on by an of the bill investi- opponent was a comment n. illegal had techniques he believed this Court ruled gative *29 nor York, neither Berger he, New 41.22 Since in techniques suggested those any supporter of the bill, hardly is indic- would authorized comment III, be his practices. of such legislative of a endorsement More- ative judicially there a marked war- over, is difference between the “hid[ing bugs premises suspects” ranted in the of criminal of] authorized entry expressly and a forcible that has not been by any subterfuge forci- judge. difference between The trespass ignored. ble should not be explains why
That difference reliance on two Court’s III by proponents emphasize statements of Title technological “bugs” “taps” misplaced. limitations on is proponents The discourage believed these limitations would frequent use Thus, and abuse of electronic surveillance. repeated in charges passage answer of Title would Germany anticipate recreate Hitler’s “1984,” Orwell’s Sena- tor Tydings, passage partially quoted by ante, Court, 252, argued:
“Contrary to what we have heard, electronic surveil- lazy way lance is not a to conduct investigation. an It 22 full, paragraph excerpted by the Court is as follows: Berger against York, “In the State of New 12, 1967, decided on June majority Court, speaking through Mr. Clark, Justice threw out the court-approved New York eavesdropping statute, State declaring it to be permitted police unconstitutional. The New York statute to obtain judicial authorizing bugs warrants premises them hide in the of criminal suspects. majority opinion The Court’s bugging outlawed this statute because, said, procedures specific did safeguards against not contain amendment, police of the fourth violations which limited searches.” 114 (Sen. Long Cong. (1968) Missouri). Rec. will not be used physical wholesale as a substitute for investigation.
“The reason sparing simple. First, such use are [s] really conspira- electronic surveillance is useful torial . activities. . . very Tape surveillance is use.
“Second, difficult to telephones strung. Bugs must on wires installed are in many places surreptitious install since difficult entry is impossible. more than one Often, often necessary adjust equipment. . . .
“Third, monitoring equipment requires this the ex- penditure great amount of law enforcement’s Cong. (1968) (em- time .” 114 12988-12989 . . . Rec. phasis added).23 inconsistent commentary
Read this and like context, are with, rather than an unauthorized break-ins. of, endorsement *30 entry although surreptitious For of true it is course that without “impossible” accomplished often when it must be impossi- violating byis no law, surreptitious means by hardly may if be effected “difficult”) ble it is it (indeed, police unhampered by provisions whatever means the — Despite disposal. of the criminal law—can to their bring I remark understanding Tydings’ Court’s of read Senator it, supporters of only many expressions one of Title as Ill’s belief surveillance would their that authorized electronic Scott) and id., (Sen. 13203 “carefully circumscribed,” at id., “rigidly (Sen. Tydings), at 14715 controlled,” id., at supervision,” by technology but court also “strict id., 16076 at (Sen. guidelines,” 13200 the “strictest Scott), 23 etc., 5037, before Programs: Hearings R. also Anti-Crime on H. Judiciary, 90th on the Subcommittee No. 5 of the House Committee ante, Cong., Sess., (1967), 1st 1031 cited at 251.
274
(Rep. system of Harsha), “an elaborate and safe- checks Id., guards.” (Sen. Scott).24 at 13204 opponents Even the of III, parading before Con- gress privacy they the various of invasions felt would accompany passage of the statute, never once referred to breaking entering private property. g., id., E. at (Sen. id., 14710 Cooper); id., 14732 (Sen. Yarborough); at at (Rep. Celler). 16066 they That omitted such references decrying aggravated while far less strong invasions is evidence at they, least, thought never about this issue that case raises.25 And since sponsors legislation ex- pressly they stated that specified had “every possible consti- safeguard tutional for rights privacy,” id., individual at sets forth the most precise “[Title elaborate and III] detail the safe guards surrounding the application competent jurisdiction court of authority for wiretap. make a I fully am satisfied designed it is against any to guard precious unwarranted invasion of the right pri vacy.” Cong. (1968) Rec. 16276 (Rep. MacGregor). id., See also (Sen. Percy); id., (Rep. Boland); Rep. at 16296 No. 90th Cong., Sess., 2d On at least two occasions the Court has commented on circumspec- tion with which Title III was drafted: particularized sets forth necessary
“[Title the detailed and application III] to obtain such an carefully order well as the circumscribed conditions its represents comprehensive use. The Act attempt by Congress to promote more effective protecting control crime privacy while thought expression.” individual United States v. United States Court, S., District (emphasis added). U. at 302 See also Gelbard v. supra. See also n. Congress Had expressly issue, considered the I am confident that *31 granted would not have the Executive authority the broad to bréale and by enter today’s that is conferred the Court in decision. Illustrative of its probable investigative reaction to techniques such responses are the of some officially Members to the sanctioned break-in against committed the of office Ellsberg’s psychiatrist, Daniel possibility to the of official participation Watergate in the break-in. g., E. Cong. Rec. 14607- (1973) (Sen. Edwards); id., at 15332 (Rep. Sarasin). (Sen. McClellan),26 any significant their omission of aggravated
reference to these surely intrusions demonstrates they did not consider issue either. this my as sum, during far research the reveals, debates on III neither proponents the nor bill opponents the directly indirectly expressed the view the statute would authorize by uninvited forcible trespasses police officers as means of implanting a listening device.
B Because the drafters of Title made “indiscriminate ref- types erence to the ... surveillance this Court reviewed” ante, prior cases, the Court draws conclusion that Congress meant “types all authorize dis- surveillance” cussed premise those cases. The support does not conclusion.
Many of those cases, including specifically two cited by the held Court,27 police conduct involved was unlawful. Rather endorsing than all of techniques dis- cussed in those cases, Congress quite clearly was trying to avoid the unconstitutionality incidents of had those cases
26The protection privacy dimensions of the constitutional were cer tainly supporters underestimated of Title III. Senator Lausohe, example, say had this to about the intent of Framers the Fourth Amendment:
“[T]hey also knew that
the innocent
protected
individual would be
home;
his
that no
though
one shall enter. Even
hovel,
it is a
to him it
they
palace.
is a
Constitution,
So
wrote into the
regardless
poor
of how
may be,
one’s
home
government
that it shall not be entered
without
having
law-enforcement official
first obtained a warrant for search and
seizure issued on the
establishing probable
basis of evidence
cause.” 114
Cong.
Rec. 14729
States,
Berger
Kate v. United
347;
York,
389 U. S.
v. New
388 U. S.
41. See also Silverman
505;
v. United
Irvine
Cali
fornia,
276 drafting in Judi- III, the Senate Moreover,
identified.28 merely ciary more than isolate and exclude Committee did activity in- illegal police bill from the elements in Chairman of Commit- Thus, volved those cases. III was question in whether Title tee, colleague’s answer to a conformity in Fourth stated: Amendment, drafted with the my Completely “Completely so, say let friend. me every gone and it even more restrictive. We have so, is length protect people’s which is we proper, think, 114 privacy.” Cong. 14470 Ree. greater although
It is of Con- importance, however, that gress “types of surveillance” involved was concerned prior in our congressional none of the references to those cases, entry type cases discussed the made to effectuate the sur- any veillance. Not a in pre-1968 word of those opinions, one, save an illegal entry described implied or even such an had opinions occurred. Those instead described in situations which listening a surreptitiously device had been placed: against an office wall in order to hear in conversations the next office, States, Goldman v. United 316 129; U. S. on a person of agent federal who recorded a in conversation the defendant’s On Lee laundry, States, v. United in a 747; Lopez cabaret, States, v. United 427; U. S. office, States, law Osborn v. United 323; U. against S. spike party inserted under a wall, States, Silverman v. United U. 505; S. on the public outside of a telephone Katz booth, v. United 347; 389 U. private and inside a office, Berger York, v. New 41. It is, course, true the conduct each cited case was but there is surreptitious, a vast difference between detective work merely clan- destine and work that breaking involves entering into private property. Before the Berger, decisions Katz and technique former was considered to be lawful, warrant or Rep. supra, See S. No. 1097,
no whereas warrant,29 the latter was considered unlawful.30 *33 The fact that Congress prepared was a author- enact statute izing practices previously thought surely does not lawful justify equally the conclusion was prepared that it to author- always ize conduct that had been made unlawful crimi- nal laws of the various States. California, only pre-1968
Irvine v. was S. U. in actually implan- case which this had Court confronted the listening by way "trespass, tation of an electronic device a probably and a for burglary, any person which unofficial Id., probably should be, severely punished.” would be, plurality through at 132.31 The of four, speaking Mr. Jus- Jackson, say tice had this to police about the conduct case:
“That officers of the law a home, would break and enter a secrete such device a even and listen to bedroom, the conversations occupants of the a over month would be incredible if it were not admitted. Few police measures have come to our attention that more fla- grantly, deliberately, persistently violated the funda- g., E. On States, Lee v. United 747; Goldman v. United States, 129; States, Olmstead v. United 277 U. 30 g.,E. supra; Silverman v. United supra. Irvine California, 31Mr. Justice entry Jackson described the as follows: “On 1, 1951, December while Irvine and his wife were from absent their home, an arranged officer go to have a locksmith there and a door malee key. days later, again Two occupants, the absence of officers and a technician made into the home key the use of this and installed microphone a concealed in the hall. A hole was bored in the roof of the strung house and wires were neighboring transmit to a garage whatever microphone might pick sounds the up. posted Officerswere in the garage 8, police to listen. On again December surreptitious entry made microphone, moved the hiding time it in Twenty days this the bedroom. they again later, placed microphone entered and closet, in a where the purpose device remained until its ¡enabling the officers to overhear incriminating accomplished.” statements was S., 347 U. at 130-131. Fourth Amendment... by declared principle mental Ibid. al- assessment, this disagreed Member of the Court
No because conviction overturn majority refused to though While apply to the States. exclusionary rule did not then ante, Mem- four at points out, Court true, as the it is war- “search Irvine Court adverted to the lack bers 347 U. support entry, S., process” or other rant found issue Members who discussed the (while the other three relying without “revolting” activity “offensive” and police con- no Justice also true that warrant32), lack of a on the contem- explicitly court order break-in absent some doned a any reading premises. Under entry on the plating physical *34 trespass and condoning official be as it cannot taken case, specific authorization. burglary absent Irvine, with- Congress cited importantly, the fact that
More considering Title explanation, or when it was out comment ques- an fairly interpreted be endorsement cannot condemned so thun- police behavior that had been tionable years My respect derously by Justice Jackson earlier. Mr. lawmaking process forecloses the inference that Con- for the stealthy legisla- burglarious by such gress authorized conduct history. tive
IV supported by not either of the statute Because it is the text I fear scraps legislative history,33 of relevant that or the 32 Id., id., (Frankfurter, J., dissenting, joined by Burton, J.); at 145 at J., dissenting). (Douglas, argues Congress’ goals enacting The Court the statute would authority frustrated if Title III were not read to include the exercised be Ante, by course, Congress 252-254. Of if the Government this case. at reprehensible securing intended to sanction “even the most means Irvine, conviction,” S., (Frankfurter, J., dissenting), 347 U. at 146 then legislative withholding some of those means would indeed frustrate the impute Congress an purpose. But there no reason to such intent to importance ignore safeguarding its conscientious attention to the may Court’s holding presumption reflect an unarticulated police national power carry officers have the out a surveil- by lance order may whatever means necessary be unless ex- plicitly prohibited by the statute or by Constitution. surely
But presumption run way. should the other Congressional silence should be construed to authorize the Executive violate criminal state laws or upon to encroach constitutionally protected privacy interests. Before confront- ing the serious constitutional by issues raised the Court’s read- ing of Title III,34 we should an upon insist unambiguous state- by ment Congress that this sort of police conduct be may authorized a court and specific that a showing of necessity, or at probable least cause, precede must such an authorization. Without legislative mandate is both explicit I specific, would presume that flagrant this invasion of the privacy citizen’s is prohibited. New States York Cf. Telephone Co., 434 U. atS., 178-179 (Stevens, dissenting J., rights of privacy. individual Cong. See 114 (Sen. (1968) Rec. 14469-14470 supra, McClellan); see 272-273, at quite Congress clearly expected wiretaps provide exterior the most effective means of electronic surveillance authorized Title III. The unavailability “bugs" of certain interior e., implanted by those means —i. trespass hardly forcible frustrating seen as the entire law —can g., scheme. E. enforcement Rep. 1097, supra No. 72; n. at Cong. (1968) (Sen. Rec. 12988 id., Tydings); (Sen. id., Scott); *35 (Sen. at id., McClellan); (Sen. at 14714 Murphy). Congress' prediction proved correct: “Telephone taps apparently account for most instances electronic
surveillance, and accomplished can this by in most circumstances placing tapa on the premises line outside the suspect. According of the report to the final of the National for Commission Review of Federal and Relating State Laws Wiretapping and Surveillance, only Electronic 1,220 out of some electronic surveillance orders executed between 1968 trespassory 1973 involved a Wiretap Commission, National intrusion. Electronic Surveillance . . . ." 15 (1967) Finazzo, United States v. 2d, F. at 841 n. 13. 34Compare opinion Court, ante, 246-248, 254-259, opinion ante, BrenNan, Mr. Justice at 259-262. Ramsey, United States v. part); S., (Stevens, U. at 632 dissenting).35 J.,
I respectfully dissent. 35In III, addition to authority the Government claims for the break-ins under the statute, federal “no-knock” 18 U. S. C. § under Fed. Rule Proc. 41. Crim. Because I pre believe that Title III has empted the field of surveillance, electronic it is conclusive for me that nowhere authorizes the entries involved in this case as a means of executing eavesdropping an order. Congress Even if had never III, enacted Title however, I would nonetheless conclude justifica these other asserted breaking entering tions official are unavailing in this case. Both provisions refer magistrate “warrants” issued with the awareness their probably require execution would police to find some other illegal wise entering premises. means of No such awareness was evi denced the District Court when it authorized electronic surveillance in generally this case. See Finazzo, United States supra, at 845-848.