Kilgore v. MitchellKilgore v. Mitchell
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- Before:
- Poole
Appellants Gerald Kilgore, members of his family and a family friend, sued under the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
BACKGROUND
Title III sets forth standards and procedures for the use of electronic surveillance. Law enforcement officers must receive authorization from the Attorney General or a specially designated Assistant Attorney General before applying to a United States District Court for a warrant.
One whose communications are intercepted in violation of Title III may seek damages from persons involved in the illegal surveillance, but “[a] good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.”
The only named target of the wiretapping was Kilgore, who conducted an extensive bookmaking operation, primarily from his place of business, JK Sports Journal. Law enforcement officers in California submitted a warrant application to the Justice Department for approval. After authorization from the Justice Department, the application and supporting materials were presented to the United States District Court. The affidavit in support of the application contained a lengthy description of the investigation of Kilgore to that point, including transcripts of two telephone сalls involving Kilgore which had been intercepted by a wiretap in Georgia. On this information, the district judge issued an order which permitted wiretapping on Kilgore’s phones from October 1 to October 15, 1970, and required submission of progress reports every fifth day. Before expirаtion of the fifteen days, the Justice Department authorized an application for extension. The district court ordered extension of the surveillance for an additional fifteen days and continuation of periodic reports. The surveillance terminated on October 30, 1970.
Wiretaps were placed on all phones at Kilgore’s residence and business. The phones were monitored constantly; all conversations were intercepted and recorded, regardless of their contents or participants. Numerous innocent conversations involving each of the appellants were consequently intercepted.
The appellees in this case had roles in either authorizing or conducting the surveillance. Appellees Mitchell, Wilson, Petersen and Shapirо were officials in the Department of Justice responsible for processing and authorizing applications for wiretap warrants. Appellee Duffy was the FBI agent in charge of the Kilgore investigation who conducted the wiretapping.
DISCUSSION
For purposes of the summary judgment motion, the district court accepted as true appellants’ allegations that the wiretaps violated the statute and the Fourth Amendment in several respects, but found that appellees had established a good faith defense as to eаch alleged violation. The court therefore entered judgment in their favor. The only issue before this Court is the correctness of the district court’s conclusion regarding the good faith defense. For reasons discussed below, we affirm.
Officials charged with violation of Titlе III may invoke the defense of good faith under
Appellants do not challenge appellees’ subjective good faith belief that their actions complied with the statute, but argue rather, as to each allegеd violation, that this belief was objectively unreasonable.
1. Authorization Procedure.
The statute requires that applications for court orders be authorized by the Attorney General or a specially designated Assistant Attorney General.
The procedure followed in 1970 in this case appears to constitute a violation of Title III as later construed by the Supreme Court in U. S. v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and U. S. v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). In 1970, however, appellees were proceeding without the benefit of judicial interpretation of the statute. Moreover, although appellees obviously did not rely on the decisions, two Courts of Appeals prior to Giordano and Chavez approved the procedure followed in this case. U. S. v. Cox, 462 F.2d 1293 (8th Cir. 1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974); U. S. v. James, 494 F.2d 1007 (D.C. Cir.), cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974). The issue was therefore at least shrouded in some uncertainty. Appеllees could reasonably have entertained their asserted belief that the Justice Department’s authorization procedure was in accordance with Title III. We conclude that a good faith defense has been established.
2. Failure to Identify Other Suspects.
An application for a wiretap must include “the identity of the person, if known, committing the offense and whose communications are to be intercepted.”
3. Showing of Necessity.
In order to justify the use of еlectronic surveillance, an application for a wiretap must include a full and complete statement as to why normal investigative techniques are insufficient to provide evidence of the crime.
4. Reliance on Georgia Wiretap.
Appellees question the validity of the application in this case because probablе cause was based in part on information obtained from a wiretapping in Georgia which in 1975 was found to be defective with regard to Kilgore. However, the Fifth Circuit upheld the validity of the wiretap as to all others indicated. U. S. v. Doolittle, 507 F.2d 1368, aff’d en banc, 518 F.2d 500 (5th Cir. 1975), cert. denied, 430 U.S. 905, 97 S.Ct. 1172, 51 L.Ed.2d 580 (1977). Appellees cannot be faulted for failing to predict in 1970 that an otherwise legal wiretap application would be found invalid with respect to Kilgore. Their belief in the validity of the Georgia wiretap was objectively reasonable, satisfying the test for a good faith defense.
5. Failure to Minimize.
During the surveillance in question, all conversations were monitored, resulting in the interception of many innocent conversations involving neither criminal content nor participants suspected of criminal activity. Duffy had been instructed, pursuant to Justice Department policy at that time, that the statutory mandate of minimization in
The Justice Department’s interpretаtion subsequently proved to be erroneous. The Supreme Court has held that minimization means intercepting the least number of innocent conversations possible under the circumstances. Scott v. U. S., 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). However, the earliest published judicial holdings construing the minimization clause wеre issued after the wiretapping in this case, e. g., United States v. King, 335 F.Supp. 523 (S.D.Cal.1971), modified, 478 F.2d 494 (9th Cir. 1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974); U. S. v. Leta, 332 F.Supp. 1357 (M.D.Pa.1971), and the issue did not reach the Supreme Court until 1978.
Justice Department policy and the underlying statute itself were intended primarily to respond to the constitutional standards set forth in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873,18 L.Ed.2d 1040 (1967) and Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See U. S. v. Donovan, supra, 429 U.S. at 426-27, 97 S.Ct. at 667. Appellants argue that appellees could not reasonably have believed that their interpretation of the minimization clause was appropriate, and that they must have known that interception of any innocent communication was to be minimized. The Court in Berger did express concern about the monitoring of innocent communications, but in the context of a recording device placed in an office for a period of two months. In such a situation, all persons coming into the area would be affected, without regard to their connection to the suspect or to the crime. The Supreme Court in Katz dealt with the expectation of privacy of those using a public telephone. The interception in the instant case was more limited, involving private telephones and only calls placed tо or from the suspect’s home or the business which he used as a front for bookmaking.
Furthermore, the overriding principle in both Berger and Katz was the necessity for judicial control over electronic surveillance and a neutral predetermination of the scope of the search. The wiretapping in this casе, pursuant to the requirements of Title III, possessed such essential safeguards. Appel-lees were not unreasonable in believing that Justice Department policy complied with constitutional standards.
More importantly, this wiretapping was subject to continuing judiciаl supervision. Periodic reports submitted to the authoriz
In 1970 appellees were attempting to implement a new statute, one which lacked judicial clarification. The record contains no evidence that they sought intentionally to avoid compliance with the statute, only that they failed to interpret its requirements correctly. Absent any evidence of disregard for the safeguards of Title III, “to hold [appellees] personally liable for exercising [their] statutory responsibility to evaluatе and act upon an uncertain area of the law would be nothing short of punitive.” Weinberg v. Mitchell, 588 F.2d 275, 278 (9th Cir. 1978).
The district court correctly determined that the elements of a good faith defense were established. Accordingly, the judgment is affirmed.
Notes
. At oral argument, appellees urged this Court to сonclude that Mitchell, Wilson, Petersen and Shapiro were entitled to absolute immunity because they were performing prosecutorial functions. In other cases, courts have attempted to distinguish quasi-judicial or prosecutorial functions from investigative or administrative activities. E. g., Jacobson v. Rose, supra; Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979), cert. pending, 48 LW 3481 (1980). Due to the difficulty of making such a distinction and because we find qualified immunity established in this case, we decline the invitation to reach the issue of absolute immunity.