191 Conn. 360 | Conn. | 1983
These appeals concern the extent to which the state police are required to minimize electronic
The panel, on March 15,1973, issued order 73-03 “to intercept the telephone communications of Arnold Albert residing/having his place of business at: Austin Hotel, Plymouth, Conn., from 5 p.m. on 15 March 1973 to 5 p.m. on 25 March 1973.” The order contained the statutory requirement that the surveillance be “conducted in such a way as to minimize the interception of communications not otherwise subject to interception . . . .”
The wiretap operations pursuant to the authorized interception of the public telephones at the Austin House Hotel led to a request for a ten day extension of order 73-03. The wiretap panel authorized an extension on the same terms as the original order. Thereafter, on the basis of intercepted evidence that a telephone in Plainville was being used to conduct narcotics operations, the state applied for a second wiretap order. In this application, the state sought “to intercept the wire communications of Daniel A. Wrisley, a/k/a Daniel A. Risley and others unknown” over the telephone listed in his name, in light of evidence procured from the 73-03 wiretap, and elsewhere, which indicated that Wrisley’s telephone was being used for narcotics transactions. The application again stated, as had the application for 73-03, that the monitoring
The trial court found that surveillance pursuant to the authorized wiretaps took the form of indiscriminate listening to all communications on the tapped telephones. Although the monitoring equipment could have been shut off or turned down upon a determination that an ongoing conversation was innocent, the police officers assigned to the wiretaps had received little or no instruction with respect to the statutory requirement of minimization. At most, some officers were instructed not to monitor privileged conversations in which one party was a clergyman, doctor or lawyer.
Although the state argued that narcotics investigations require unlimited interceptions because initially innocuous conversations may subsequently turn to narcotic related subjects and may use narcotic related code words, the trial court concluded that the surveilling agents had failed to comply with the minimization mandates of the wiretap orders themselves and of the statute. The court acknowledged that assessment of minimization depended “upon the facts and circumstances of each case.” It recognized the practical difficulties of minimization but refused nonetheless to limit the responsibility to minimize to privileged communications. Because a communication once seized, no matter how wrongly, can never be given back, the court noted that “the right of privacy protected by the fourth amendment has been more invaded where a conversation which can never be returned has been seized than where a physical object which can be returned has been seized.” On this basis, the trial court granted the defendants’ motions to suppress the evidence obtained through the state’s electronic surveillance. The informations against the defendants were thereafter dismissed.
The state raises three issues on appeal. First, it argues that, in determining that the monitoring officers failed to comply with the minimization requirement, the trial court applied an incorrect standard, focusing on
I
The state’s first claim of error addresses the standard by which compliance with the minimization required is to be measured. The state maintains that the trial court mistakenly relied on a subjective federal standard which the United States Supreme Court subsequently rejected in Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168, reh. denied, 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150 (1978). Interpreting the minimization requirement of 18 U.S.C. § 2518 (5) (1976),
The state argues that the trial court failed to follow the rule in Scott because it attributed dispositive weight to the police officers’ indiscriminate listening to all intercepted communications over the tapped telephone lines. We note that the trial court also stated that resolution of the minimization question depended upon the facts and circumstances of each case. We are not persuaded that these divergent strands in the memorandum of decision necessarily signal that the trial court applied an incorrect standard.
The trial court was entitled to give some weight to the failure of the state’s agents to attempt minimization. It is true that the case law after Scott counsels us that it may be difficult to screen intercepted conversations for pertinency, especially when the investigation focuses on a widespread conspiracy and when the investigation has not yet proceeded to establish patterns of conversations. United States v. Napolitano, 552 F. Sup. 465, 476 (S.D.N.Y. 1982); see Scott v. United States, supra, 140-42; United States v. Feldman, 606 F.2d 673, 678 (6th Cir. 1979), cert. denied sub nom. United States v. Zalmonowski, 445 U.S. 961, 100 S. Ct. 1648, 64 L. Ed. 2d 236 (1980); United States v. Dorfman, 542 F. Sup. 345, 390 (N.D. Ill.), aff’d, 690 F.2d 1217 (7th Cir. 1982); United States v. Webster, 473 F. Sup. 586, 597 (D. Md. 1979), aff’d in part, rev’d in part on other grounds, 639 F.2d 174 (4th Cir. 1981), aff’d and modified, 669 F.2d 185 (4th Cir. 1982), cert. denied, 456 U.S. 935,102 S. Ct. 1991, 72 L. Ed. 2d 455 (1982); accord United States v. Hyde, 574 F.2d 856, 869-70 (5th Cir.), reh. and reh. en banc denied (5th Cir. 1978);
We have previously recognized that our own wiretap statute is in many ways more stringent than the federal act. State v. Grant, supra, 25, 25 n.3; see 14 S. Proc., Pt. 2,1971 Sess., pp. 849 (remarks of Sen. Jay Jackson), 855 (remarks of Sen. James Macauley). While the federal minimization language is substantially identical to
Resolution of the appropriate weight to be assigned good faith can await another day, however. The record in the present appeal does not require us to resolve the ambiguity inherent in the trial court’s memorandum of decision.*
The state contends as a matter of fact that overhearing every telephone conversation in the present case was objectively reasonable because it was impossible to determine the pertinency of each call until the call terminated. The state supports this factual claim by alleging the high percentage of conversations pertinent to the complex narcotics conspiracy under investigation, and the brevity of the nonpertinent calls.
It is not the function of this court to make full-scale factual findings de novo. Thus our review of the state’s allegations is limited to determining whether, daring the suppression hearing, the state met its burden of making a prima facie showing of compliance with the minimization requirement.
It is true that many officers at the suppression hearing testified to the impossibility of ascertaining pertinency prior to the termination of calls, and to the absence of any “pattern of innocent calls” which might have established a basis for excluding from surveillance
Our assessment of the state’s case is hampered by the state’s failure to offer a pertinency analysis of the great majority of calls made pursuant to order 73-03.
The state’s case is marred, however, by a deficiency more grave than this. The state contends that in determining, for minimization purposes, whether a call
We emphasize that in construing the orders the issue is not whether the three judge panel could reasonably
The state contends that the surrounding circumstances and certain language in the orders, however, indicate that the three judge panel approved the interception of all calls. This argument, which we find unpersuasive, consists of three parts.
First, noting that the wiretap applications sought to intercept the calls “of others unknown” in addition to Albert and Wrisley, the state argues that the panel’s designation of the “approved” box on the order forms, instead of the “approved with conditions” box, had the effect of incorporating by reference the “and others unknown” language contained in the applications. We read the panel’s designation as merely indicating that the state’s application required no further amendment. We note that the panel had previously delayed action on the application pending the submission of an amendment by the state. Regardless of its actual meaning, however, the designation of the preprinted box is too ambiguous to contradict the clear language of the order itself.
Third, noting that the extension applications acknowledged conversations, already overheard, which
The minimization issue in the present case may therefore be stated as follows: Was it possible for the state to minimize surveillance so as to exclude conversations not involving, for order 73-03, Arnold Albert, and, for order 73-04, David Wrisley? The state has made no claim that it was impossible to recognize, or to learn to recognize, the voices of these individuals. The testimony of the officers indicates, to the contrary, that it was entirely possible. For example, for order 73-03, during an eight hour shift on March 18,1973, ten calls were fully intercepted, none of them involving Albert; on a March 20, 1973 shift, nineteen calls were intercepted, none involving Albert. In fact, for a period of several days inclusive of these shifts, close to 100 calls were monitored to which Albert was not a party. Our own examination of the logs of wiretap No. 73-04 indicates that the majority of the calls did not involve Wrisley as a party, and that the parties to most calls were readily identified by the monitoring officer.
Ill
The state’s final argument is that, even if the conduct of the wiretap violated the minimization requirement, suppression is warranted only of those calls which should properly have been excluded from surveillance. The issue which the state raises was expressly reserved in Scott v. United States, supra, 135 n. 10, and remains the subject of controversy in the courts.
One line of cases, which the state urges us to follow, holds that conversations contemplated by the warrant are admissible even if conversations extraneous to the warrant have been overheard. United States v. Cox, 462 F.2d 1293, 1301-1302 (8th Cir. 1972), cert. denied, 417 U.S. 918, 94 S. Ct. 2623, 41 L. Ed. 2d 223 (1974); United States v. Dorfman, 542 F. Sup. 345, 394-95 (N.D. Ill.), aff’d, 690 F.2d 1217 (7th Cir. 1982); United States v. Sisca, 361 F. Sup. 735, 746-47 (S.D.N.Y. 1973), aff’d, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S. Ct. 328, 42 L. Ed. 2d 283 (1974). Other courts require the total suppression of all communications wherever the minimization requirement is violated. United States v. Focarile, 340 F. Sup. 1033, 1047 (D. Md.), aff’d sub nom. United States v. Giordano, 469
We feel the more reasonable rule is that stated by a third line of cases. Numerous courts, both before and after the decision in Scott v. United States, have stated that while partial suppression is the proper remedy when minimization is attempted but fails, total suppression is necessary when the violation results from a complete disregard of the minimization requirement. United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.), modified, 609 F.2d 433 (9th Cir. 1979); United States v. Hyde, 574 F.2d 856, 869 (5th Cir.), reh. and reh. en banc denied, (5th Cir. 1978); United States v. Turner, 528 F.2d 143,156 (9th Cir.), cert. denied sub nom. Grimes v. United States, 423 U.S. 996, 96 S. Ct. 426, 46 L. Ed. 2d 371 (1975), and sub nom. Hackett v. United States, 429 U.S. 837, 97 S. Ct. 105, 50 L. Ed. 2d 103 (1976); United States v. Suquet, 547 F. Sup. 1034, 1039 (N.D. Ill. 1982); United States v. Webster, 473 F. Sup. 586, 598 (D. Md. 1979), aff d in part, rev’d in part on other grounds, 639 F.2d 174 (4th Cir. 1981), aff d and modified, 669 F.2d 185 (4th Cir.), cert. denied, 456 U.S. 935, 102 S. Ct. 1991, 72 L. Ed. 2d 455 (1982); United States v. Curreri, 363 F. Sup. 430, 437 (D. Md. 1973); United States v. Lanza, 349 F. Sup. 929, 932 (M.D. Fla. 1972); United States v. Leta, 332 F. Sup. 1357, 1360 n.4 (M.D. Pa. 1971); accord Fishman, Wiretapping and Eavesdropping § 290 (1978). Although the rule was
The difficulty with suppressing only those conversations outside the scope of the wiretap order is that a remedy so limited would remove an incentive to restrict interception to the proper scope of the order. United States v. Focarile, supra, 1047; State v. Catania, 85 N.J. 418, 426, 427 A.2d 537 (1981); Fishman, “The ‘Minimization’ Requirement in Electronic Surveillance: Title III, The Fourth Amendment, and the Dread Scott Decision,” 28 Am. U.L. Rev. 315, 352 (1979); note, “Minimizing Minimization,” 59 B.U.L. Rev. 567, 578 n.90 (1979). A court’s exclusion of extraneous evidence
Furthermore, the purpose of the minimization requirement is to prevent a wiretap from turning into “a general search and wholesale invasion of privacy.” United States v. King, 335 F. Sup. 523, 544-45 (S.D. Cal. 1971), aff d in part, rev’d in part on other grounds, 478 F.2d 494 (9th Cir.), cert. denied sub nom. Light v. United States, 414 U.S. 846, 94 S. Ct. 111, 38 L. Ed. 2d 94 (1973), cert. denied, 417 U.S. 920, 94 S. Ct. 2628, 41 L. Ed. 2d 226 (1974); see Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). The overhearing of telephone conversations, like a search of documents, poses an inherent danger of turning into a general search, due to the difficulty of ascertaining the relevance of the item to be “seized.” Andresen v. Maryland, supra. Where disregard of a warrant’s limitations is flagrant and entire, the otherwise valid warrant may become a general one in which case the “fruits of the search” must be suppressed. United States v. Heldt, 668 F.2d 1238, 1259 (D.C. Cir. 1981); see United States v. Suquet, 547 F. Sup. 1034, 1039-43 (N.D. Ill. 1982).
Finally, we feel the present approach is necessary to ensure the integrity of the wiretap statute and of the functioning of the judiciary with respect to it. The remedy which the trial court designed and which we adopt is no more exceptional than the circumstances which demanded it. The execution of the wiretap in the present case entirely misconstrued the scope of the order which authorized it, completely disregarded the minimization requirement contained in that warrant, and resulted in the overhearing of hundreds of conversations, incriminating and innocent alike, which could
There is no error.
In this opinion the other judges concurred.
The defendants and others were charged by a single information with conspiracy to distribute, sell, dispense, compound, and transport with intent to sell and dispense heroin, in violation of General Statutes §§ 53a-48 and 19-480a (now § 21a-278). The defendant Parker’s motion to suppress the contents of intercepted wire communications was granted by the trial court, McGrath, J., on September 6, 1974, after an extensive evidentiary hearing. The trial court based its suppression order entirely on the state’s failure to minimize, and rejected the defendant’s claims (a) that General Statutes § 54-41a et seq. violates the fourth amendment to the United States constitution and (b) that the police failed to make timely return of the tape recordings to the issuing panel, in violation of General Statutes § 54-41Í. The state’s motion to reargue the suppression motion was denied by the court, Levine, J., on July 22,1976. Thereafter the defendant moved to dismiss the information, arguing that the facts alleged in the affidavit supporting the bench warrant for his arrest were based on the suppressed evidence. The motion to dismiss was granted by the trial court, O’Brien, J., on July 28, 1976.
Also on July 28,1976, the trial court, O’Brien, J., granted the motions of the defendants Thompson, Black and LePore to suppress evidence obtained in the same wiretaps, based on the suppression order in the Parker case. Accordingly, the informations in those cases were dismissed as well. The state thereafter obtained permission to file a single brief for all four appeals, having conceded that the prosecutions arose from the same factual situation. Of the defendants, only Parker and Thompson filed briefs; Thompson, Black and LePore indicated their willingness to rely on the Parker brief.
The delay in the filing of the state’s brief in these cases prompted this court to issue, sua sponte, a decree nisi on October 2,1979, dismissing the state’s appeal for failure to prosecute with proper diligence, to take effect unless the state filed its brief by November 15, 1979. The state complied
The case files disclose no attempt by the defendants to have the appeals dismissed due to the delay. After the state submitted its brief, the defendants obtained numerous extensions to file their own briefs. On December 2,1980, this court, sua sponte, issued a nisi order, subsequently rescinded, directing judgment against the defendant LePore for failure to defend the appeal with proper diligence.
At oral argument, we voiced a concern that the time which has elapsed since the investigative phase of these matters might render unlikely a prosecution at this late date. The state offered assurance, however, that in the event the present appeals are resolved in its favor, the state intends to proceed in its prosecution of the defendants.
“[General Statutes] Sec. 54-41b. application foe oedee authoeizing inteeception. The state’s attorney for the judicial district in which the interception is to be conducted may make application to a panel of judges for an order authorizing the interception of any wire communication by investigative officers having responsibility for the investigation of offenses as to which the application is made when such interception may provide evidence of the commission of offenses involving gambling, bribery, violations of section 53-395, violations of section 21a-277 or felonious crimes of violence.”
“[General Statutes] Sec. 54-41c. infoemation in application. Each application for an order authorizing the interception of a wire communication shall be made in writing upon oath or affirmation to a panel of judges. Each application shall include the following information: . . . (2) the identity and qualifications of the investigative officers or agency for whom the authority to intercept a wire communication is sought; ... (5) ... (A)
“[General Statutes] Sec. 54-41e. statement by panel on issuance of order, contents of order. Each order authorizing the interception of any wire communication shall be accompanied by a written statement of the issuing panel setting forth in detail its determination made in accordance with the provisions of section 54-41d and the grounds therefor and shall specify: (1) The identity of the person, if known, whose communications
In addition to the order itself, the panel is required to prepare a statement pursuant to General Statutes § 54-41e; see footnote 5, supra; and a report to be submitted to the chief court administrator. General Statutes § 54-41n.
“[General Statutes] Sec. 54-41h. privileged wire communications; ISSUANCE OP ORDER AND INTERCEPTION PROHIBITED. If the facilities from which, or the place where, the wire communications are to be intercepted are being used, or are about to be used, or are leased to, listed in the name of, or commonly used by, a licensed physician, an attorney-at-law or a practicing clergyman, no order shall be issued and no wire communications shall be intercepted over such facilities or in such places. No otherwise privi
18 U.S.C. § 2518 (5) provides in relevant part: “Every order [entered under this section] and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.”
See footnote 5, supra, for relevant portion of General Statutes § 54-41e (11). See footnote 8, supra, for text of 18 U.S.C. § 2518 (5) (1976).
“Extrinsic minimization involves limiting the time period during which monitoring is conducted.” Fishman, Wiretapping and Eavesdropping (1978) § 151. “[TJhere is some reason to think that restricting the time of listening in was thought by Congress to be the, or at least a, principal method of minimizing. See, e.g., Senate Report No. 1097, 90th Cong., 2d Sess., Judiciary Committee, Apr. 29, 1968, to accompany S. 917 reproduced in 1968 U.S. Code Cong. & Adm. News, p. 2112, at p. 2190,2192-93.” United States v. Chavez, 533 F.2d 491, 493 (9th Cir.), cert. denied, 426 U.S. 911, 96 S. Ct. 2237, 48 L. Ed. 2d 837 (1976).
Because of the death of the trial court judge while this appeal was pending, we cannot remand for further articulation to ascertain the weight given to the monitoring officer’s failure to attempt minimization. We note, however, that, in response to the state’s motion to reargue, the trial court, Levine, J., found no inconsistency between the memorandum of decision of McGrath, J., and the District of Columbia Court of Appeals decision in United States v. Scott, 516 F.2d 751 (D.C. Cir.), reh. and reh. en banc denied, 522 F.2d 1333 (D.C. Cir. 1975), cert. denied, 425 U.S. 917, 96 S. Ct. 1519, 47 L. Ed. 2d 768 (1976). The Court of Appeals decision was approved by the United States Supreme Court in the principal case of Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168, reh. denied, 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150 (1978).
Since there are no issues of credibility in such a determination, it may appropriately be made by a reviewing court. See Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n.2, 461 A.2d 1369 (1983); Drazen v. Drazen, 180 Conn. 572, 573 n.3, 430 A.2d 1288 (1980).
This same testimony did not claim that any attempt was made to minimize. Rather, the testimony was to the effect that, even if such an attempt had been made, no calls could have been excluded from surveillance.
As we have noted, two public telephones were tapped at the Austin House Hotel pursuant to order 73-03. One was located in the lobby and one outside the hotel. The taps lasted twenty days each. The state’s call analysis is restricted to calls overheard on the inside phone during the first six days of the tap.
The state contends that United States v. Kahn, 415 U.S. 143, 154-55, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974), holds “that the interception of conversations between persons unnamed in the order is proper so long as the conversations pertained to the subject matter within the purpose of the wire interception.” We disagree with the state’s interpretation. United States v. Kahn upheld the validity of an order permitting surveillance of a named subject “and others as yet unknown.” Id., 156. In determining the permissible scope of the warrant, the Supreme Court found the quoted language dispositive; id.; and interpreted its meaning exactly as we do. Id.; accord United States v. O’Neill, 497 F.2d 1020, 1022-23 (6th Cir. 1974); compare United States v. Capra, 501 F.2d 267, 276 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S. Ct. 1424, 43 L. Ed. 2d 670 (1975) (requiring suppression of conversations of party who was neither named in order nor conversing with named party, when order permitted only “the interception of telephonic communications of [named suspect] with co-conspirators, accomplices and agents”; id., 273) with United States v. Principie, 531 F.2d 1132, 1137-38 (2d Cir. 1976), cert. denied, 430 U.S. 905, 97 S. Ct. 1173, 51 L. Ed. 2d 581 (1977) (refusing to suppress conversations between two
The Massachusetts wiretap statute requires the order to specify the person to be overheard. It omits the “if known” language of the Connecticut statute. Mass. Gen. Laws Ann. c. 272 § 99 (I) (S) (1980); see Carr, The Law of Electronic Surveillance § 4.07 [1]. In Connecticut, the question of whether unnamed parties may be overheard is left to the issuing panel. Of course the greater latitude given the panel by the Connecticut statute in no way mandates the inclusion of “others unknown” in the scope of a particular order.
The case cited by the state in support of its incorporation-by-reference argument is United States v. Tortorello, 480 F.2d 764, 781 (2d Cir.), cert.
Even if we were to assume, arguendo, that the panel was cognizant of the unauthorized surveillance in which the police were engaged, it is doubtful that the panel would have had the authority retrospectively to enlarge the scope of the search authorized by its prior order. “A transaction capable of ratification can be ratified if, but only if, the purported principal can authorize such a transaction at the time of affirmance . . . .”1 Restatement (Second), Agency § 86 (1957).
Because we agree with the trial court that the conduct of wiretap order 73-04 was in violation of the minimization requirement, it is unnecessary to consider the state’s claim that the evidence showing probable cause for issuance of order 73-04 was obtained independently of the fruits of wiretap order 73-03. For discussion of such a claim, see United States v. Giordano, 416 U.S. 505, 530-33, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974).
The New Jersey wiretap statute provides that any minimization violation must result in the suppression of “the entire contents of all intercepted wire or oral communications . . . .” N.J. Stat. Ann. 2A: § 156A-21 (Cum. Sup. 1983); see State v. Catania, 85 N.J. 418, 426, 427 A.2d 537 (1981).
A corollary of our holding today is that persons aggrieved by a particular wiretap; see General Statutes § 54-41a (10); have standing to contest the state’s failure to minimize its interception of conversations, overheard in the course of the same wiretap, to which the aggrieved person was not a party. Accord United States v. Scott, 504 F.2d 194, 197 (D.C. Cir. 1974); United States v. Suquet, 547 F. Sup. 1034, 1038-40 (N.D. Ill. 1982); State v. Catania, 85 N.J. 418, 425-27, 427 A.2d 537 (1981). Determination of the overall reasonableness of minimization procedures necessitates such an approach. United States v. Scott, supra. In the present case, the state does not dispute that the defendants are aggrieved persons, nor does it make any other challenge to the defendants' standing. We express no opinion, therefore, as to whether an aggrieved person would have standing to suppress a conversation to which he was not a party, upon proof that the conversation was illegally intercepted. See United States v. Scott, supra, n.5; United States v. Suquet, supra.