UNITED STATES v. CHAVEZ ET AL.
No. 72-1319
Supreme Court of the United States
Argued January 8, 1974—Decided May 13, 1974
416 U.S. 562
Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney
James F. Hewitt argued the cause and filed a brief for respondents.
MR. JUSTICE WHITE delivered the opinion of the Court.
This case, like United States v. Giordano, ante, p. 505, concerns the validity of procedures followed by the Justice Department in obtaining judicial approval to intercept wire communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211-225,
I
Respondents were all indicted for conspiracy to import and distribute heroin in violation of
Each application to the court had recited, however, that the Attorney General, pursuant to
The discrepancy between who had actually authorized the respective applications to be made, and the information transmitted to the District Court clearly indicating that Assistant Attorney General Wilson was the authorizing official, was explained as the result of a standard procedure followed within the Justice Department.
The District Court held that the evidence secured through both wiretaps had to be suppressed for failure of either of the individuals who actually authorized the applications to be “identified to Chief Judge Carter, Congress or the public” in the application or orders, as
The Court of Appeals affirmed in all respects. 478 F. 2d 512. With respect to the Chavez tap, the Court of Appeals assumed, as had the District Court, that the Attorney General had personally approved the request for authority to apply for the interception order, as his affidavit stated. Nonetheless, the misidentification of Assistant Attorney General Wilson as the authorizing official was deemed to be a “misrepresentation” and an “apparently deliberate deception of the courts by the highest law officers in the land,” id., at 515, 517, which required suppression of evidence gathered from the tap for failure to comply with
We granted certiorari, 412 U. S. 905, to resolve the conflict between the position taken by the Ninth Circuit in this case on the issue of suppression because of inaccurate identification of the officer authorizing the application and the position taken by every other circuit that has considеred the question.2 We agree with those other
courts of appeals that misidentifying the Assistant Attorney General as the official authorizing the wiretap application to be made does not require suppression of wiretap evidence when the Attorney General himself has actually given the approval; hence, we reverse that portion of the judgment suppressing the Chavez wiretap evidence, and remand for further proceedings to permit the District Court to address other challenges to the Chavez wiretap evidence which respondents had made but the District Court did not find it necessary to consider.3 Because
II
The application and order for the Chavez wiretap did not correctly identify the individual authorizing the application, as
Section 2515 provides that the contents of any intercepted wire or oral communication, and any derivative evidence, may not be used at a criminal trial, or in certain other proceedings, “if the disclosure of that information would be in violation of this chapter.”
“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”
In United States v. Giordano, supra, we have concluded that Congress, in
There is little question that
Respondents suggest that the misidentification of Assistant Attorney General Wilson as the authorizing official was calculated to mislead the District Judge in considering the wire interception applications, and certainly had the effect of misleading him, since the interception order also misidentified the authorizing official in reliance on the statements made in the application. We do not perceive any purpose to be served by deliberate misrepresentation by the Government in these circumstances. To the contrary, we think it cannot be seriously contended that had the Attorney General been identified as the person authorizing the application, rather than his subordinate, Assistant Attorney General Wilson, the District Judge would have had any greater hesitation in issuing the interception order. The same could not be said, of course, if, as in Giordano, the correct information had revealed that none of the individuals in whom Congress reposed the responsibility for authorizing interception applications had satisfied this preliminary step. The District Court undoubtedly thought that Wilson had approved the Chavez and Fernandez wiretap applications, and we do not condone the Justice
Neither the District Court nor the Court of Appeals made clear which of the grounds set forth in § 2518 (10) (a) was relied upon to suppress the Chavez wiretap evidence. Respondents rely on each of the first two grounds, i. e., that the communications were “unlawfully intercepted” and that the Chavez interception order is “insufficient on its face.” Support for the latter claim is drawn from the District Court decision in United States v. Focarile, 340 F. Supp. 1033, 1057-1060 (Md.), aff‘d on other grounds sub nom. United States v. Giordano, 469 F. 2d 522 (CA4 1972), aff‘d, ante, p. 505, which concluded that an order incorrectly identifying who authorized the application is equivalent to an order failing to identify anyone at all as the authorizing official. We find neither of these contеntions persuasive.
Here, the interception order clearly identified “on its face” Assistant Attorney General Wilson as the person who authorized the application to be made. Under
The claim that communications to and from the Chavez phone were “unlawfully intercepted” is more plausible, but does not persuade us, given the purposes to be served by the identification requirements and their place in the statutory scheme of regulation. Though we rejected, in Giordano, the Government‘s claim that Congress intended “unlawfully intercepted” communications to mean only those intercepted in violation of constitutional requirements, we did not go so far as to suggest that every failure to comply fully with any
In the present case, the misidentification of the officer authorizing the wiretap application did not affect the fulfillment of any of the reviewing or approval functions required by Congress and is not within the reach оf paragraphs (ii) and (iii). Requiring identification of the authorizing official in the application facilitates the court‘s ability to conclude that the application has been properly approved under § 2516; requiring identification in the court‘s order also serves to “fix responsibility” for the source of preliminary approval. This information contained in the application and order further aids the judge in making reports required under
who issues or denies an interception order to report his action and certain information about the application, including the “identity of . . . the person authorizing the application,” within 30 days, to the Administrative Office of the United States Courts,
Nor is there any legislative history concerning these sections, as there is, for example, concerning
When it is clearly established, therefore, that authorization of submission of a wiretap or electronic surveillance application has been given by the Attorney General himself, but the application, and, as a result, the interception order, incorrectly state that approval has instead been given by a specially designated Assistant Attorney General, the misidentification, by itself, will not render interceptions conducted under the order “unlawful” within the meaning of
The judgment of the Court of Appeals is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part in No. 72-1319, United States v. Chavez, and concurring in No. 72-1057, United States v. Giordano, ante, p. 505.
The Court deals with two different Justice Department violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which imposes express limitations on the use of electronic surveillance. In United States v. Giordano the Court correctly finds that the violation of
I
Title III permits electronic surveillance to be employed only pursuant to a court order. It requires inter alia, that a federal trial attorney desiring to apply to the District Court for such a wiretap order must first secure authorization from one of a group of specified officials in the Justice Department. Giordano represents a class of cases in which authorization for electronic surveillance was given by Sol Lindenbaum, the Executive Assistant to Attorney General John Mitchell, in violation of the “authorization requirement” of
In the Justice Department between 1969 and 1972, a request from a federal trial attorney for authorization to apply for a wiretap order was reviewed in the Criminal Division before being sent to Attorney General Mitchell. According to the Solicitor General, in Chavez Attorney General Mitchell made the operative decision to authorize the wiretap application and signified this by sending a memorandum to Assistant Attorney General Will Wilson directing Wilson to authorize the trial attorney to submit the application to the District Court. The memorandum,1 the Solicitor General admits, does not make clear that the operative decision was made in the Attorney General‘s Office; rather, it indicates that Wilson himself was designated to review and authorize the application.
At this point, a letter of authorization was sent to the trial attorney, which clearly identified Assistant Attorney General Wilson, and not Mitchell, as the person who had made the operative decision to authorize the wiretap.2 Wilson, however, neither saw nor authorized
When the trial attorney applied for a wiretap order in the District Court, he attached the letter of authorization purportedly signed by Wilson, and naturally misidentified Wilson as the person who had authorized the application to be made,4 in violation of the identification
In Chavez, Mitchell first acknowledged responsibility for authorizing the wiretap application in an affidavit filed with the District Court only after respondents had made a motion to suppress the evidence in the tap. Similar affidavits stating that Mitchell had authorized the application, rather than Wilson, were filed by Lindenbaum and Petersen. The courts below, on the strength of these affidavits, have held that Mitchell did in fact authorize the application to be made. Both, however, ordered the evidence which was seized by the surveillance to be supрressed, since the application misidentified Wilson as the responsible official. This Court reverses the Court of Appeals.
II
Deciding a question not reached in Giordano, the Court in Chavez holds that suppression is not dictated when there has been a violation of a provision of Title III which does not, in the view of the courts, “directly and substantially implement the congressional intention to limit the use of intercept procedures” to cases clearly calling for electronic surveillance. I cannot agree that Title III, fairly read, authorizes the courts to pick and choose among various statutory provisions, suppressing
The Court fixes on
“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.”
Since paragraphs (ii) and (iii) reach some statutory violations, reasons the Court, paragraph (i) cannot reach all statutory violations or else paragraphs (ii) and (iii) would be “drained of all meaning.”
The choice seems to be between attributing to Congress a degree of excessive cautiousness which led to some redundancy in drafting the protective provisions of
Congress could easily have given the judiciary discretion to apply the suppression remedy only for violations of “central” statutory provisions by using language such as “unlawfully intercepted in violation of important requirements of this chapter” in
Again, no distinction supports the conclusion that Congress considered any provision of Title III more
III
Moreover, even under the test the Court defines in Chavez, that violations of only those statutory provisions “directly and substantially” limiting the use of electronic surveillance will warrant suppression, the violation of the identification requirements of
In support of its conclusion that suppression is not mandated by the
The Court reduces the statement of Congress that the identification provisions were created to “fix responsibility” for a wiretap authorization to meaning only that the provisions were drafted to assure the courts that there had been compliance with the authorization requirement of
It seems to me a complete misreading of Congress’ attempt to “fix responsibility” in the application and order to reach these conclusions. Sections
In its discussion of the authorization requirement of
“This provision centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will
avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen.” S. Rep. No. 1097, 90th Cong., 2d Sess., 97 (1968).
But this alone was not sufficient. The Report continues:
“The application must be made to a Federal judge of competent jurisdiction, as defined in
section 2510 (9) , discussed above. The application must conform tosection 2518 , discussed below.” Ibid. (Emphasis added.)
The Committee‘s discussion of
“Section 2518 of the new chapter sets out in detail the procedure to be followed in the interception of wire or oral communications.
“Subparagraph [2518 (1)(a)] requires the identity of the person who makes, and the person who authorized the application to be set out. This fixes responsibility.
“Subparagraph [2518 (4)(d)] requires that the order note the agеncy authorized to make the interception and the person who authorized the application so that responsibility will be fixed.” Id., at 100, 101, 103. (Emphasis added.)
The crucial concept is Congress’ expression of intention that
Clearly, no such responsibility was fixed on Mitchell,
“was a misrepresentation, in circumstantial and carefully phrased detail, all pointing to Wilson as the officer authorizing the application, when in fact he did no such thing.
“. . . The Wilson letter and the Mitchell memorandum create the illusion of compliance with the Act. Without Mitchell‘s affidavit, the lines of responsibility lead to Wilson, not to Mitchell.”
Yet Wilson never saw the application for which Mitchell now accepts responsibility. Before the affidavits submitted to the District Court in response to the motion to suppress, about one year after the application was initially authorized, responsibility pointed directly at Wilson, and no document implicated Mitchell.
It is simply not enough that Mitchell‘s responsibility is established only after a prosecution is under way and a motion to suppress filed. After-the-fact acceptance for the Chavez surveillance was made at no cost. The surveillance was productive and was directed against an alleged drug trafficker, a pariah of society. Acсepting responsibility at this point, further, helped Mitchell and the Justice Department avoid the acute embarrassment of losing this prosecution. But this was not the scheme created by the Congress. By creating the identification provisions, which required the authorizing official to be made known at the time of an application, it established a mechanism by which a person‘s responsibility was to be acknowledged immediately, not a device by which the identity of the person authorizing the application would remain hidden until it was discovered that an instance of electronic surveillance had been productive and not offensive to public sensibilities.
The Court‘s treatment of the identification requirements trivializes Congress’ efforts in adding them to Title III. In Giordano, the Court relies on Congress’ clearly expressed desire that an official, responsible to the political process, should make the decision authorizing electronic surveillance and bear the scrutiny of Congress and the public for that decision. As noted, the Senate Report which accompanied Title III to Congress stated that
“Now, the reason [for this requirement] is that unless we involve someone in the process of using this equipment who is politically responsible, that is, someone who must return to the people periodically and be reelected, it seems to me we miss a significant check on possible abuse. As a practical matter, if there is police abuse, the remedies that we can take against them are limited. If we involve the responsible judgment of a political official in the use of this equipment, and it is then abused, the people have a very quick and effective remedy at the next election.”13
But it is clear that this personal responsibility and political accountability, relied on by Congress to check the reckless use of electronic surveillance, is rendered a mere chimera when the official actually authorizing a wiretap application is not identified until years after the
In eviscerating Congress’ intent to fix responsibility in the application and order, the Court destroys a significant deterrent to reckless or needless electronic surveillance. It allows the official authorizing a wiretap to remain out of the harsh light of public scrutiny at the crucial beginning of the wiretap process, only to emerge later when he chooses to identify himself. Knowledge that personal responsibility would be immediately focused and immutably fixed, whatever the outcome of surveillance, be it profitable or profligate, successful or embarrassing, forces an official to be circumspect in initially authorizing an electronic invasion of privacy. This is why Title III requires more than a judicial determination of probable cause; it also requires an accountable political official to exercise political judgment, and it requires that the political official be immediately identified and his responsibility fixed when an application is filed. The identification procedures, by fixing responsibility, obviously serve to “limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device,” thereby requiring suppression even under the test the Court adopts in Chavez.
The Court mentions in passing the reporting requirements of Title III, noting the information furnished the judge pursuant to
In the set of cases represented by Chavez, of course, the person actually authorizing the applications, Mitchell, was not made known to the courts which approved them, and so the reports filed with the Administrative Office by the judiciary did not identify him as the responsible official. The potential for public accountability through this channel was foreclosed by the misinformation given the courts. While the report filed by the office of the Attorney General in January 1970 did state that the 1969 applications filed in Wilson‘s name had been personally approved by Mitchell, the Solicitor General informs us that the reports filed by the Attorney General regarding instances of electronic surveillance for 1970 and after, including the Giordano wiretap (1970) and the Chavez tap (1971), did not acknowledge that
V
As the Court recognized in Gelbard v. United States, 408 U. S. 41, 48 (1972), the protection of privacy was an overriding concern of Congress when it established the requirements of Title III in 1968:
“The need for comprehensive, fair and effective reform setting uniform standards is obvious. New
protections for privacy must be enacted.” S. Rep. No. 1097, 90th Cong., 2d Sess., 69.
Electronic surveillance was a serious political issue, and these detailed and comprehensive requirements are not portions of a hastily conceived piece of legislation. As noted above, electronic surveillance legislation was introduced long before 1968, and the provisions of Title III are the culmination of a long evolutionary process. The Title was accompanied by an exhaustive and studied report in which the Senate Judiciary Committee offered an explanation and justification for eaсh clause of the bill. I cannot believe that Congress perversely required law enforcement officials to jump through statutory hoops it considered unnecessary to the goal of protecting individual privacy from unwarranted electronic invasions.
On the contrary, the history of Title III reflects a desire that its provisions be strictly construed. Senator McClellan, sponsor of S. 675, one of the bases for Title III, and chairman of the committee which reported Title III to Congress, stated during hearings on his bill:
“I would not want any loose administration of this law.
“But [I would] have it very strictly observed. It is not to become a catchall for promiscuous use. I want to see this law strictly observed with the courts adhering to the spirit and intent of it in granting the orders.
“I think it ought to be tight, very definitely as free from loopholes as it can possibly be made. . . .”16
Mr. Justice Holmes observed in dissent 70 years ago:
“Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest whiсh appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Northern Securities Co. v. United States, 193 U. S. 197, 400-401 (1904).
In addition, in reporting to the Senate in 1969 on the operation of Title III during its first year, Senator McClellan stated:
“I do, however, want to admonish every law enforcement officer, prosecutor, and judge involved in this area that the only way this legislation will be effective in combating crime is by strict adherence to the standards it contains.
“. . . This is an invaluable and powerful tool that must not be subjected to abuse. Those who violate the standards can and must either be punished and if they cannot learn to follow the law they must face loss of this law enforcement tool. . . .
“Mr. President, my purpose in making these remarks has been to help assure that this legislation will be, in fact, followed to the strictest letter of the law—both bringing criminals to book and protecting citizens’ privacy. That is the only way in which it can be utilized as an effective tool in reducing crime. Let us make sure that none of those who may be convicted can ask for a reversal because the law was not strictly followed.” 115 Cong. Rec. 23241-23242.
Notes
The form memorandum employed by Mitchell stated in part:
“This is with regard to your recommendation that authorization be given to [the particular trial attorney] to make application for an Order of the Court under
“Pursuant to the powers conferred on me by
The letter sent over Wilson‘s signature in Chavez read:
“This is with regard to your request for authorization to make application pursuant to the provisions. of
“I have reviewed your request and the facts and circumstances detailed therein and have determined that there exists probable cause to believe that [named individuals were committing certain offenses] .... I have further determined that there exists probable cause to believe that the above persons make use of the described facility in cоnnection with those offenses, that wire communications concerning the offenses will be intercepted, and that normal investigative procedures reasonably appear to be unlikely to succeed if tried.
“Accordingly, you are hereby authorized under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the power conferred on him by
In Chavez, the letter was signed by Petersen.
The application stated:
“[T]he Honorable John N. Mitchell, has specially designated in the proceeding the Assistant Attorney General for the Criminal Division of the United States Department of Justice, The Honorable Will Wilson, to authorize affiant to make this application for an Order authorizing the interception of wire communications. This letter of authorization signed by the Assistant Attorney General is attached to this application as Exhibit A.”
The order read in part:
“Special Agents . . . are authorized, pursuant to the application authorized by the Assistant Attorney General for the Criminal Division of the United States Department of Justice, the Honorable Will Wilson, [to intercept wire communications] ....”
Ҥ 2519. Reports concerning intercepted wire or oral communications.
“(1) Within thirty days after the expiration of an order (or each extension thereof) entered under section 2518, or the denial of an
“(a) the fact that an order or extension was applied for;
“(b) the kind of order or extension applied for;
“(c) the fact that the order or extension was granted as applied for, was modified, or was denied;
“(d) the period of interceptions authorized by the order, and the number and duration of any extensions of the order;
“(e) the offense specified in the order or application, or extension of an order;
“(f) the identity of the applying investigative or law enforcement officer and agency making the application and the person authorizing the application; and
“(g) the nature of the facilities from which or the place where communications were to be intercepted.
“(2) In January of each year the Attorney General, an Assistant Attorney General specially designated by the Attorney General, or the principal prosecuting attorney of a State, or the principal prosecuting attorney for any political subdivision of a State, shall report to the Administrative Office of the United States Courts—
“(a) the information required by paragraphs (a) through (g) of subsection (1) of this section with respect to each application for an order or extension made during the preceding calendar year;
“(b) a general description of the interceptions made under such order or extension, including (i) the approximate nature and frequency of incriminating communications intercepted, (ii) the approximate nature and frequency of other communications intercepted, (iii) the approximate number of persons whose communications were intercepted, and (iv) the approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
“(c) the number of arrests rеsulting from interceptions made under such order or extension, and the offenses for which arrests were made;
“(d) the number of trials resulting from such interceptions;
“(e) the number of motions to suppress made with respect to such interceptions, and the number granted or denied;
“(f) the number of convictions resulting from such interceptions
“(g) the information required by paragraphs (b) through (f) of this subsection with respect to orders or extensions obtained in a preceding calendar year.
“(3) In April of each year the Director of the Administrative Office of the United States Courts shall transmit to the Congress a full and complete report concerning the number of applications for orders authorizing or approving the interception of wire or oral communications and the number of orders and extensions granted or denied during the preceding calendar year. Such reports shall include a summary and analysis of the data required to be filed with the Administrative Office by subsections (1) and (2) of this section. The Director of the Administrative Office of the United States Courts is authorized to issue binding regulations dealing with the content and form of the reports required to be filed by subsections (1) and (2) of this section.”
S. 1495, 87th Cong., 1st Sess., § 4 (b), printed in Hearings on Wiretapping and Eavesdropping Legislation before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 1st Sess., 4, 5 (1961).
Printed in Hearings on Controlling Crime Through More Effective Law Enforcement before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 75 (1967).
Printed in Hearings, supra, n. 7, at 1006.
S. Rep. No. 1097, 90th Cong., 2d Sess. (1968).
Id., at 66.
The Court in Chavez finds some guidance in the fact that “no real debate surrounded” the adoption of the identification requirements. This is not surprising, in that the provisions were added to wiretapping legislation in committee, and justified in the Judiciary Committee‘s report.
114 Cong. Rec. 14474. The Report was by the Association of the Bar of the City of New York, Committee on Federal Legislation, Committee on Civil Rights, entitled “Proposed Legislation on Wiretapping and Eavesdropping after Berger v. New York and Katz v. United States.”
Hearings on Anti-Crime Program before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1380 (1967).
The Administrative Office, nonetheless, repeated the statement made for 1969 that Mitchell had “personally” authorized the applications.
See Administrative Office of United States Courts, Reports on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications, 1969, 1970, 1971.
Hearings on Controlling Crime Through More Effective Law Enforcement before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 508, 869.