*1 UNITED STATES GIORDANO v. еt al. May 13, January 8, Argued 1974 Decided 72-1057.
No. *2 Court, I, II, opinion in Parts and White, J., delivered the Douglas, joined, and in which Members Part IV III of which all Douglas, J., Marshall, JJ., joined. filed Stewart, Brennan, and Stewart, Marshall, Brennan, concurring opinion, in which J., opinion concur- joined, post, Powell, filed an JJ., p. 580. opinion dissenting I, II, Court’s ring in and III of the Parts Burger, J., IV, and Blackmun and Rehn- in which C. from Part post, quist, JJ., joined, p. 548. Bork for the General the cause United argued
Solicitor the brief Assistant With him on were States. M, Petersen, Sidney Shapiro, Harriet S.
General *3 Glazer. respondents
H. argued Russel Smouse the cause for respondent and filed a brief for Giordano. opinion delivered the
Mr. Justice White Court. III-of
Title the Omnibus Crime Control and Safe UU1968, 211-225, Streets Act 18 U. S. C.' Stat. judi- prescribes procedure securing §§ 2510-2520, authority cial to wire communications specified investigation serious offenses. The Court here determine must whether the Government suffi- complied ciently required procedures with the application in this case and if whether, not, evidence obtained aas result of such under surveillance, a court order on based applications, admissible at trial of criminal those whose conversations were overheard. In particu- lar, must decide whether provision we of 18 U. S. C. , (1)1 power “Attorney General, on the conferring
§ 2516 Attorney specially designated General .Assistant by Attorney application General” to “authorize an to judge authorizing a Federal ... for ... an order interception of or oral communica- approving the wire by investigative agencies seeking tions” federal evidence Attorney permits designated of certain offenses Gen- validly wiretap eral’s Executive Assistant authorize a conclude, application Congress to be made. We did power wiretap applications not intend the to authorize by be exercised other than the Attor- individuals ney specially General or an Assistant General by designated primary him and that or derivative evi- interceptions pursuant dence secured wire court to a response order issued in was, to an which fact, statutorily authorized one of the designated officials must suppressed under 18 U. S. C. § upon a properly motion made under 18 U. C. 2518 S. (10)(a). Accordingly, we affirm judgment of Appeals. Court
I In the'course of an investigation suspected initial narcotics dealings part on the respondent it Giordano, developed that Giordano himself sold narcotics an undercover agent on 5, October 1970, and also told an informant specified call a number when interested in transacting narcotics business. Based on this and other Francis information, Brocato, Assistant States United Attorney, 16, October an application submitted to the Judge Chief of Maryland District for an *4 order permitting interception of the communications of Giordano, yet and of others as unknown, to or from telephone. Giordano’s application The recited that provisions 1 This and other relevant of the statute are contained Appendix opinion, to this post, p. 534. been'spe- General Will had Attorney Assistant Wilson cially Attorney to designated by General authorize application application. Attached to the was letter which -from Will Wilson to Brocato stated that Wilson request had reviewed Brocato’s for authorization necessary probable-cause determinations had made the then pro- and which authorize Brocato to tb purported application ceed with the attached the court. Also were various stating affidavits'of law enforcement officers justification proposed ^intercep- the reasons and for the Upon reviewing application, Judge, tion.. Chief day issued an on the authorizing same inter- ception “pursuant application by authorized Assistant General . . . who has Will Wilson, specially by been the Attor- designated proceeding ney him powers General ... on exercise the conferred S. U. C. On the same [18 November §2516].” judge appli- intercept authority extended the based on an including cation similar original, form to but also already information interception from the obtained authority authorized and extending carried out and calling conversations óf named individuals additiоnal from to telephoné. Giordano’s was terminated November' 18 when Giordano and the ' other respondents charged were-arrested and with viola- tions of the narcotics laws..
Suppression hearings'followed pretrial notification Government, see (9), § 2518 it intended tó use in evidence the results of the intercep- court-authorized tions of communications on telephone. Giordano’s It developed hearings'that at the applications for inter- ception authority presented to the District Court had inaccurately described the official who had' authorized applications and that application neither the initial the October 16 order nor the for the
510 and approved been had extension
November Wilson, Will Attorney General by Assistant authorized An of the affidavit had indicated. applications the as divulged Attorney General to the Executive Assistant had reviewed Assistant, Executive he, for the initial apply order, for to request authorization Attorney of the “knowledge from his concluded, had approve would cases, that he previous on General’s actions because him,” if submitted to request and, from Wash- trip- away then a Attorney was on General by the pursuant and authorization D. ington,. C., circumstances, him do in such Attorney so General Attorney Gen- request and caused approved had a to Wilson placed on memorandum eral’s initials to proceed. The instructing him to authorize Brocato Attorney himself General also stated affidavit request for extension approved had the November designating memorandum to Wilson had initialed the him Brocato for an to authorize to make although order. It was also revealed that .extension' they applications recited that been authorized had Will he had not himself Brocato’s Wilson, reviewed only and that his action was at best formal applications, authorization it became Furthermore, Brocato. apparent did that Wilson not himself either of the sign his bearing letters name‘and accompanying applica- Instead, appeared tions io the District Court. it in Wilson’s officе had affixed his signature someone after had signing letters been authorized Deputy Attorney Assistant General the Criminal had, .Division who in turn, approval acted after the request for authorization had occurred in and had -been received from the Office of the General. District Court
. sustained the suppress motions to ground that the officer in the Department Justice application had been misidentified approving each (cid:127) applications violation orders, States v. United (l)(a). (4)(d), §§ U. S. C. *6 Focarile, the Supp. 1972). On 1033, (Md. 340 F. 1060 3731, C. pretrial 18 appeal § Government’s under U. S. Appeals ground the of on the different Court affirmed wiretap applica- that the authorization of the October 16 by Attorney tion Executive Assistant General’s very .of violated 2516 the statute and struck at “the thereby of the III, requiring suppression heart” of Title wiretap and and 2518 derivative evidence under 2515 §§ (10)(a)(i) (ii).2 (CA4 469 2d 1972). F. 531 and granted We certiorari to the' with de- resolve- conflict cisions Court Appeals of the of for the Circuit3 Second
2 interceptions Evidence derived from conducted the unlawful pursuant to wiretap held include the October order was to wiretap order evidence obtained under the November 6 extension and 22 and the evidence secured under court of orders October also authority 6 extending investigative “pen register,” November a to use e., par i. a telephone device that records dialed from numbers phone, ticular previously which had to monitor been used phone numbers dialed from pursuant to a order of Giordano’s court applications presented October 8. The Court District wiretap pen register authority extend and each detailed at consider length intercepted, able the contents pursuant of conversations agree support requests. the October order in We therefore IV, with the of Appeals, Court for the reasons discussed in Part infra, gathered register that evidence wiretap pen. under the by extension unlawfully intercepted orders is tainted the use of com judicial munications under approval October the. to secure extensions, suppressed. and must be for. 3The Second Circuit has held approval wiretap applica that Attorney tions General’s complies Executive with Assistant (1). dictates of Pisacano, In United States v. 459 F. 2d §2516 (1972), permit the court guilty refused withdrawal pleas subsequent on the basis discovery the Executive Assistant had authorized the first of wiretap applications, three declaring that it was “not at all gone convinced that if this case had with, circumscribed respect to the administration III the use of Title authority Congress granted in has enforcement law wiretap evidence wiretapping 411 U. 905. officers. S. II authorization contends United States Execu- Attorney General’s applications by the the statute not-inconsistent with tive Assistant was if no constitutional viola- were, being it there even should not wiretap and derivative tion, evidence both suppressed. disagree with have been ordered We contentions.4 permits
Turning
first
to whether
statute
applications
by.
wiretap
authorization
Assistant,
begin
we
with the lan-
General’s Executive
*7
by
suppress
to trial and the court had refused to
evidence obtained
wiretaps,
reversed,”
the
we
Justice
would have
and that “the-
Department’s procedures
very likely
were
with the man
consistent
Id.,
§2516(1).”
Shortly
date of
at 264 and
5.
a
n.
thereafter
panel
judgments
different
of that Circuit affirmed
in
of convictions
raising
issue,
a case
the same
out of “adherence to the 1'aw of the
recently
circuit” so
decided and with the admonition that its decision
approval
procedure
should
“not...
construed as an
the
of
followed
Becker,
by
Attorney
the
General and his staff.”" United States v.
230,
(1972).
461
every
F. 2d
In
236
other circuit which has consid
issue, suppression
ered the
court-approved
of evidence derived from
.interceptions
application
wire
Attorney
based on an
authorized
the
required by
TExecutive
has
to be
Title
been held
Assistant
Generalas
Mantello,
III. United
v.
App.
States
2,
156 U. S.
D. C.
478 F.
(1973);
2d 671
Roberts,
(CA7 1973)
United States v.
;
“The General from time time provisions make such he considers appropriate as performance by any authorizing officer, other employee, or agency Department of Justice Attorney function of the General.” It duty is therefore argued merely vesting Attorney General, Congress as it is (1), said did § preclude evinces no intention whatsoever to delegation to other Department officers including Justice, Attorney on the those General's own staff. full, In 28 U. provides: S. C. 5Ó9. Functions of-the
“§ General. n “All Department functions other officers of Justice and *8 agencies employees functions of and the Department of Justice all. Attorney except are-vested in the General the functions— by subchapt-er vested “(1) chapter hearing II 5 of title 5 employed by examiners Department Justice; “(2) of Industries, Prison Inc.; the Federal “(3) of the Board of Directors and officers of the Federal Prison Industries,.Inc.;
“(4) of the Board of Parole.” unexcep- is argument proposition, general
As a expressly delegation matter But tionable. here Attorney Gen- power of the by 2516, and the § addressed his delegating limited to respect specifically eral in this ‘ Attorney specially аuthority General Assistant 510, Despite by § Attorney General.” designated duties as- contemplate that the always does not Congress delegated. may freely signed Attorney»-General to ,the instance, certain 1968, for Rights the Civil Act of Under prosecutions only on certification are authorized Attorney General, Attorney General or the Deputy may delegated.” not be “which function of certification precise language for- (a)(1). Equally § U. S. C. legislation- employed wás not in the bidding delegation us; (1), fairly think was read, before but we § wiretap ’authorize power intended to limit himself and to applications Attorney General This might designate. General he Assistant by supported interpretation strongly of the statute also is. history. its purpose legislative passed in purpose which was legislation, 1968, effectively was of criminal pain prohibit, all penalties,6 interceptions and civil of oral wire except communications, specifically provided those Act, notably permitted most interceptions those to law enforcement officers when authorized court connection with the investigation of the serious crimes in 2516. § listed’ wiretap Judicial orders must be preceded by applications prescribed containing informa § 2518 tion, (1). The judge findings must make certain before authorizing interceptions, including/the existence probable cg¡use, 2518 (3). § The orders themselves were, Criminal provided sanctions in 18 U. S. C. and a § damages remedy civil was Appendix created 2520. to this See opinion, post, p. 534. *9 intercep- and nature particularize must extent they expire and they authorize, (4), § tions a by expressly extended time unless specified within enforcement, offi- by on further judge based progress cials, supervision Judicial (5). § 2518 as official provided for, (6), is is custody tapes pro- recordings control of of any by to the interceptions pursuant duced carried out provisions order, § 2518 The Act also contains (8). procedures and under and specifying circumstances may aggrieved persons which seek and obtain orders for suppression intercepted wirе or oral communi- be sought cations used in evidence Govern- to. ment. (10) (a). § 2518
The Act as. respects mignt is not clear in as it some be, apparent only but it at once it not limits the crimes for intercept authority may which be obtained also imposes important but to preconditions obtaining authority intercept legislated at Congress all. considerable in providing applications detail for and orders authorizing wiretapping and the clear evinced doubly statutory intent make authority sure that be used with only where the circumstances restraint surreptitious warrant interception of wire and oral procedures communications. These were to be routinely employed as the step initial in criminal investi- gation. Rather, applicant must state and the court find must procedures normal investigative have been tried, and failed or reasonably appear unlikely succeed if tried or to be dangerous. too (l)(c) §§2518 (3) (c). plainly The Act calls for prior, informed judgment of enforcement officers desiring approval court for authority, investigative personnel may not themselves ask a judge authority to wiretap eavesdrop. The mature judgment of a particular, interposed official of Justice Department
responsible any judicial order. precondition critical as a *10 this view. supports history of the Act legislative The but 1968, passed Act was the indicated, we have As applications approval of requiring of 2516 provision § the Attor- designated Assistant or a by Attorney the General was bill a predecessor when ney from dates General (b)4 Congress. Section in the 87th being, considered prohibiting aimed at was also bill, 1495, which of that S.' initially provided designated interception, official all but Depart- of the General, any or officer “Attorney that the specially Attorney any or United States ment Justice of any may Attorney General, authorize by designated the the officer of United law enforcement investigative or judge” apply to a for a agency to any Federal States Wiretapping and Hearings оrder. oh wire on Legislation before the Subcommittee Eavesdropping Rights the Committee Constitutional of Senate Cong., Sess.,'5 (1961). Under Judiciary, 87th 1st authority centered in the phraseology, was ..that any Attorney empower he officer General, but could including United Department Justice, of the States Attorneys to authorize Assistant, and the Executive applications on the hearings orders. At Attorney charge of the bill, Assistant General Department Criminal Division stated the views of. the Department officially of Justice, proposed, and the later authority approve applications be substan- tq tially Attorney narrowed so that the could General dele- authority gate only Attorney his an to Assistant General. testimony The was: approach
“This is the of S. 1495, with which the Department general is in agreement. Justice The wiretapping bill a crime specifically makes unless by judge a involving authorized Federal situations appli- bill, IAs understand specified crimes.' only by made could be for a cation court order- . Attorney or an officer of General authority n Attorney or U. S. Department of Justice I the bill should suggest him. authorized application for a power to authorize confine Attorney assist- General court may designate. Attorney whom he ant General responsible assurance give greater This would justifi- need and determination executive Id., ability interception.” at 356. each changed proposal (b) tc official was that “Attorney General, Assistant provide .that Attorney specially Department General of the Justice e, may designated authorise” *11 General, Id., wiretap application. 372. at n provision limiting enacted, S. 1495 was not but its approve applications-for. those who could court orders survived in and was almost form identical in included legislative later proposals, including the bill that became III Title of the In Act now before us.7 the course of 1967, prepared by Blakey In a draft statute Professor G. Robert University of the regulate of Notre intercep Dame Law School to tion wire oral published communications was in The President’s Justice, Commission on Law Enforcement and Administration Report: Organized Crime, Task Force Appendix C, at 106-113. In part, it provision would have 18, added a to Title United States Code,.which empowered “Attorney General, Assistant Attorney Department General of the specially designated of Justice by Attorney application General” to authorize an to a federal judge for an order to' Id., wire or oral communications. at 108. Senator proposed McClellan introduced a Wire Inter “Federal ception Act,” 675, January 25, S. 1967, on Cong. 1491, Rec. con taining, (a), in designations the same prosecutiig which federal officials wiretap application. could Hearings authorize a on Con trolling Through Crime More Effective Law Enforcement before the Subcommittee on Criminal Laws and Procedures of the Senate Com- the drafts- in House Committee
testimony before III basic outline Title containing bill man following colloquy: in engaged origin About . . “The Chairman. . it provides it, your bill Ias understand application, Attorney General by the originated be must Am I correct Attorney General.' Assistant > regard? Blakey. Chair- you Mr. Yes, are,
“Professor , man. made be must
“The Chairman. Attorney or an Attorney General Assistant General. Blakey. mistaken, If I
“Professor am not procedure or elec- present wiretapping is before equipment approved generally tronic now it used I at that and- would Chairman, level Mr. anyway,- high not want used level equipment’ this without responsible passing may very well officials it. It be that number of not be some cases there will I get time to it. approve General just think we are to have to let those going [sic] if go, equipment cases is to be used ought it approved level highest Cong., Judiciary, (1967). on the Sess., mittee 90th 1st Senator *12 Cong. Hruska 29, 1967, later 2050 on June introduced S. Rec. 18007, provided regulated which would have for use of' electronic surveillance, wiretapping, again as well provision, as and which made 18, in a new 2516 to Code, be added to Title United for the States system approval applications same of interception of for the wire of present or oral was Blakey Hearings, сommunications as in the bill. supra, at 1005. In the Representatives, Blakey House of bill the 3, 1967, was introduced on October in 13275, the form of H. R. Cong. Ultimately, 27718. Rec. operative language the same was in enacted Title III. make certain If cannot we Justice.. of Department price we will the to have to be going that cases, Program Anti-Crime Hearings on pay.” have to House Committee 5 of No. the before Subcommittee (1967).8 Sess., 1379 1st Judiciary, 90th Cong., on the 7, supra, 675, the see n. bill, the McClellan S. hearings In the on frequently was power application on authorization limitation the Thus, of the United Judge Lumbard brought the Chief to fore. Circuit, been who had earlier Appeals for Second States Court of the York¿; Attorney for the of New United Southern District States “application testimony 8, 1967, the would" noted in March on designated require Attorney approval the or assist of General ,” urged, support recommendation that ant . . . and he of his investiga was-unnecessary wiretapping it of to limit use group crimes, fact there of a narrow serious were tion greatly wiretapping, use other would limit factors which beginning statute, 5a, proposed with the observation that “the section provides any only Attorney Attorney General, Assistant or designated specifically by him, necessary may General authorize application judge ápproval a Federal tojwiretap. Thus the. application carefully Hearings Controlling will be on screened.” Through Enforcement, supra, Crime Effective Law More n. 171—at A urging adoption legislation govern 172. letter area of wiretapping eavesdropping and electronic was sent to the subcommit by living tee on Attorneys March 7 all former United States of the York, Southern District of New interception who recommended that prohibited judge “unless application a'Federal authorized Attorney General, or Assistant General of the Department specially designated by Attorney General, Justice when such recording may provide authorized evidence against of an Id., offense laws of the United States.” at 511-512. And Senator judge MсClellan- himself testifying commented to a before the subcommittee: you legislation, know, requires “This as thorough rather court supervision through for a court order made Attorney General or designated officials in the court, bill. A course, weigh would have to probable cause the reasonable support cause application. such an I do not know how to
tighten up any it more than we . have you bill. . . Can tell us tighten up how Id., it inore?” at 894-895. *13 did Committee' Judiciary House out, the itAs turned pass did the House but wiretap bill, report out not and Criminal “Law Enforcement entitled 5037, R.H. Rec. Cong. 1967,” ofAct Assistance Justice. by add- bill that amended The 1967). Senate (Aug. 8, reflected the essentially turn III, which ing to it Title favorably reported been 917, which had provisions of S. contained and which Judiciary Committee the Senate intercep- respect tó with proposals own Committee’s report on The communications. and wire tion of oral the bill stated: chapter authorizes new 2516 of the
“Section or oral communica- particular wire interception of the authorization pursuant to tion under court order prosecut- or local Federal, State, appropriate of the ing officer. .publicly in a . . centralizes
“Paragraph . political proc- responsible subject to the official policy enforcement ess the formulation of. law techniques. on the of electronic surveillance use possibility diver- Centralization will avoid the practices occur, gent might develop. Should abuses (cid:127) responsibility the lines of lead to an identifiable person. provision long This in itself should ago way toward abuses will guaranteeing that no happen.” Rep. 90th Cong., Sess., S. No. 2d 1097, 96-97 (1968). report
This particularly only significant in that not it recognizes authority apply for court orders narrowly is to be confined but also declares it is be limited to responsive those political to the process, a category to which the Executive Assistant to the Attor- ney obviously General- does belong.9 The appointed by General the President, by and with the advice and cоnsent Senate, 503, 28 U. S. C. as with the passed H. It. amendments Senate *14 May 23, 1968, as 917, of S. provisions the tracking Act Crime Control Safe Streets the Omnibus proceed- During 14798 and 14889. Cong, Rec. the bill, emphasis of the was ings leading passage to the had Attorney General placed on 2516. That again § authority for the approve provide the exclusive and it approval wiretap applications reiterated, was no was clear that as the bill was drafted United made Attorney given States would have or could be authority apply for an order without approval Department.10 advance of a senior officer in the Attorneys provided in 28 U. S. are the Assistant General for C. nine hand, is position Assistant, on other 506. The of Executive § alia, Attorney General, regulation, inter established to assist the Attorney in the review of “matters submitted General’s may “[p]erform ae+ion” and to such as other duties functions specially assigned Attorney from time to time General.” appear 28 CFR 0.6. It would from the brief that Government’s § the Executive Executive Assistant involved in this case served as Attorneys Assistant to at least four General. day
10 In debate on the III was Senate floor the before Title adopted, responded inquiry Senator McClellan to an Senator following Lausche in matter: absolute,
“Mr. LAUSCHE. give Does the bill as now written power stop tapping, unconditional searches or or to'authorize tapping? “Mr. go Attorney No. McCLELLAN. We have to to the first General the case Government, of the Federal and to the chief in. law enforcement officers of a State .... is, then,
“Mr. LAUSCHE. prohibition against There tapping a. application unless the filed with chief law enforcement official approves He it and then application court, is filed with the that not correct? “Mr. officer, McCLELLAN. The chief enforcement law like
Attorney States, General the United applica- must authorize the prosecuting tion A attorney .... attorney cannot, or a U. S. district motion, on his. own get do it. He authority has to from the however, to extend attempt, congressional was no
Therе General or his Assist- beyond Attorney authority designate. Attorney ant General pro- 2516 (2) that because insists The Government authority among dispersal of state wider for a vides wiretap applications and leaves the approve officers to law,11 inappropriate it is up to state delegation matter of application to submit the United States first General of'the Cong. 14469. to the Rec. court.” debate, report of the During Long read Senator same from City York, Association Bar of the of. New Committee on Rights, “Proposed Legisla- Legislation, Federal Committee on Civil Berger Eavesdropping York Wiretapping tion on after v. New States,” and Katz v. United on the which commented *15 provisions III following of Title in the manner: May Apply “Who Blakey provides applications wiretapping
“The .Bill that or eavesdropping may by only orders be a limited made number of persons. Attorney At the Federal the level these are of General Attorney the United or an States General and at the Assistant. they Attorney State the principal level are or State General the attorney prosecuting (such political county of a subdivision as a city Attorney); District agree responsibility
“We that public should be focused on those principally officials who will be to the accountable and the courts public for investigative their actions. agencies Police and should power have the to make applications such on their own. On the hand, other only it seems permit very anomalous high to Federal apply, officials to excluding such officials United Attorneys as States for entire States or Districts like the York, Southern District of New permitting county .while attorneys district substantially with less responsibility applications.... to make “We also would seek to anomaly reduce the referred to above- by providing Attorney the may delegate General to United Attorneys States power to applications.” initiate Cong. Rec. 14473-14474. following The concerning comments are found in Rep. S. No. 90th Cong., Sess., (1968): 2d “Paragraph (2) -provides princiрal prosecuting attorney of principal State or the prosecuting-attorney any political of level. on the federal authority narrowly so to confine the to Congress centralize desired it apparent But do a desire so, it feasible to where was authority limit establishment in the federal implemented easily wiretap applications to confining authority approve Attor- Assistant designated aor Attorney to the General wholly at with appears odds us, To it ney General. (1) to § 2516 to construe history of Act scheme authority at delegate his to permit General to Assistant or his Executive will, whether it be to jfiicer'in Attor- an Assistant Department other than ney General.12 judge tó may a State authorize an
subdivision a State authorizing the inter- competent jurisdiction ... for an order delegation The issue of ception of wire or oral communications. States, question law. In that officer be a State most would attorney attorney principal prosecuting the State would general. question, however, important is not name but func- provide proposed provision is to for the tion. The intent relating in the policy centralization law enforcement statewide prosecuting area in the chief use of electronic surveillance exists, policymaking officer of . . . office State. Where no such possible basis; would not be a it statewide would have move government. States, prin- down the next level of In most cipal prosecuting attorney political State,- at the level of usu- next ally county, attorney, attorney, be the would district State’s county solicitor. The'intent centralize ... areawide law enforce- policy general ment attorney . . . there both an him. Where are and a attorney, district applications, either could authorize the attor- *16 general ney anywhere attorney in anywhere the State and the district county. in proposed provision his The does not envision a further Although city attorneys may breakdown. in places have some limited prosecuting jurisdiction, criminal proрosed provision the is not intended to include them.” authority We also deem it clear that the must exercised presented application judge. sug the is to a federal before gestion acceptable, practice it §2516(1) is .under the for Attorney approve General’s Executive wiretap appli Assistant Attorney in cations Attorney General’s absence if the General
nr even reject contention that We also the Government's Attorney Executive approval if the "the General's application comply did Assistant of the October not statutory requirements, with the evidence obtained interceptions suppressed. from been should not have judicially turn fashioned The issue does on exclusionary deterring rule aimed of Fourth at violations III; upon provisions rights, Amendment of Title but and, correctly sup- our view, Appeals .in the Court of pressed challenged wiretap evidence. provides part
Section 2515 no of the contents of any wire or oral and no communication, evidence derived therefrom, may be received at certain proceedings, “if including trials, the disclosure of that information be in chapter.” would violation of this What disclosures are subject and are forbidden, to suppress, motions governed turn provides § 2518 which for (a), suppression of evidence on following grounds: “(i) the communication unlawfully was inter- .
cepted ; subsequently, issued, giving after court order ap has ratifies the proval particular instance, direbtly by personally either approving the .application submission aof further for an extension ’ order, case, inas is wide of the Appeals mark. As Court of for the panel Fifth Circuit in the noted decision in United v. States Robinson, 2d, 46 F. Attorney at “authority General’s Congress from was wiretap to initiate applications, not to seek to have those terminated found been-requested he should never have place.” first It would ill congressional serve the policy of hav ing General or one of his Assistants screen the applications prior to their submission to court to screening have the process occur after the investigative made- after already officials have begun intercept wire or oral communica tions under a predicated court order assumption proper authorization apply authority given. had been
525 under approval “(ii) order of authorization face; or on its intercepted which was insufficient it conformity interception not'made “(iii) was approval.”13 with order of authorization or Appeals held the communications The that Court had been to offer in evidence the Government desired “unlawfully para- intercepted” meaning within the application had been graph (i), because the October Attorney by the to the approved Executive Assistant Attorney than General rather General himself or Attorney We have designated (cid:127)a Assistant General.14 already to delegation determined the Executive contrary statute; Assistant indeed but was approval by offi- wrong Government contends that statutory only (i) cial is violation paragraph- must be constitutional, construed to reach but not statu- n tory, argument Violations.15 The is a straightforward one based on the structure of (10) (a). §2518 On the hand, interceptions one the unlawful in para- referred to question concerning No is raised in this the manner of case conducting court-approved interceptions telephone of Giordano’s (10) (a) (iii) thus inapplicable present to the situation. § and. Appeals The required Court of suppression also held that w.'is (ii) theory on the the absence of valid under.subdivision wiretap application authorization of the equivalent was of fail ing identify all in at person who author application, rendering ized the the order “insufficient face.” on its Manifestly, however, order, face, clearly, though on its errone- ously, Attorney identified Assistant General Wilson :he as Justice Department authorizing officer the application, pursuant special designation by stood, General. As it th3 facially order was (1), sufficient under despite what §2516 was erro;- subsequently discovered, Appeals the Court of justify- was in ing suppression (10) (at (ii). under 15 suggested argument Government at that, oral tn addition violations, constitutional willful statutory might violations also fit. within the (10) (a) (i), terms Arg. §2518 Tr. of Oral 33. violations. (i) must include some constitutional
graph *18 example, probable cause, for Suppression for lack of within must fall many in so words and provided not for statutory unlikely; the paragraph (i) unless, as is most reach con- procedures were not intended suppression para- other hand at all. On the violations stitutional statutory (iii) plainly purely reach some graphs (ii) and omis- overtones, and these defaults constitutional without under interceptions be deemed unlawful sions cannot necessity no for paragraph (i), else there would have been paragraphs (iii) another (ii). pujb and the matter —or interceptions (i) if in- paragraph unlawful under way, purely statutory paragraphs (ii) (iii) clude and are issues, drained The meaning surplusage. of all and are con- argument clusion of the if that nonconstitutional omissions by paragraphs (ii) (iii) and are not reached unlawful interceptions paragraph under then there (i), is no for holding interceptions” basis that “unlawful include statutory matters; only such purely statutory transgressions warranting suppression are those falling within paragraphs (ii) (iii). position
The gains some support from fact that predecessor specified bills ground suppres- a fourth sion—the probable lack of cause—which was omitted in subsequent bills, apparently ground on that it was not needed interceptions because official prob- without able cause would be unlawful within meaning paragraph (i).16 the inference Arguably, is that since k prepared by The draft statute Blakey provided Professor ground fourth warranting suppression in cases where there was no probable believing cause for grounds existence of the on which order was Report: issued. Task Organized Force Crime, supra, 7, 111, (k) n. (1) (C). at So did § the McClellan bill, 675, Berger S. which York, prior was introduced v. New (1967). U. S. 41 Hearings Controlling Through Crime More supra, Enforcement, Effective Law 78, (g) (3). n. at But they must have retainеd, (iii) (ii) were paragraphs not covered “necessary,” is, been considered paragraph (i). substance, has of the United argument
The States must (ii) (iii) appear paragraphs does and it provide for failure to suppression be deemed to observe render statutory requirements some that would But it interceptions paragraph (i). unlawful under believe, necessarily follow, does not and we cannot unlawful statutory infringements no whatsoever are also interceptions meaning paragraph (i). within the “unlawfully intercepted” words are themselves not violations, limited to constitutional and we think Con- *19 gress require suppression intended^ to where there is satisfy statutory failure to requirements those directly substantially implement and congres- that intercept procedures sional intention to limit use of clearly employment to thosé situations for calling investigative this device. We have extraordinary already Congress only determined intended not that limit wiretapping resort to to certain crimes and situa- probable tions where present cause is but also to condi- ,of intercept procedures tion usé upon judgment the. Department a senior .‘officialin the of Justice that the situation is one of those warranting their use. It is Berger (S. 2050) proposed bill Senator after omitted th s Hruska (cid:127)ground provision language in a substantially of which is identical Id., (10) (a) finally (k) (1). 2518 as 1008, enacted. at An § 2518 explanation provided for the appendix comparir g omission is in an 2050, published by S. 675 with Scott, which was S. Senator cosponsor bill, of the Journal, latter in an article in the Howard Law Wiretapping Organized Crime, (1968), How. L. J. .14 reprinted and which was in Senator Scott’s remarks on the Senate concerning floor the Omnibus Crime Control Safe Streets Act of Cong. 1968. Rec. simply 13205-13211. It is there stated that says probable “Senator Hruska’s man implied that cause test Id., (1).” at 13211. would precondition such a to believe that
reasonable in various situa- wiretapping inevitably foreclose resort otherwise seek personnel would investigative where tions authority the court court would from and the very likely authorize use. We are confident that its approval was intended to provision pre-application for statutory sup- and that play a central role scheme statutory this pression must follow it is when shown has been requirement ignored. piece history relative to principal' legislative 2d Rep. 1097, Cong., No. 90th question S. Sess. emphasizes report
(1968). The Government expressly (10) (a) “largely states that §2518 reflects existing “press law” and that there was no intention suppression beyond scope present role search 96. report seizure law.” at But Id., also states provides suppression the section of evidence directly indirectly “in obtained violation of the chap- ter” provision and that “should to guarantee serve that the chapter standards the new sharply will curtail (cid:127)the unlawful of wire and oral communica- 17 Moreover, tions.” existing it would extend search- part In Rep. relevant 1097, supra, S. No. 96, 106, n. at provides: chapter imposes . “Section of the evidentiary new sanction compfiance to compel prohibitions other with the chapter. .. . *20 provision must, The course, light of be read in (a) of section 2518 below, discussed which the defines class entitled make a to motion suppress. largely to existing It applies suppress reflects law. It to directly (Nardone evidence States, v. United (1937)) 302 379 U. S. indirectly in obtained of chapter. (Nardone violation the v. United States, U. (1939).) is, 308 S. 338 however, There no intention to change the attenuation generally rule. . Nor press . . scope to the of suppression beyond present role search seizure and . . . law. But apply it does across in pro the board both Federal and State ceeding[s]. . . . And it is not limited to criminal Such proceedings. suppression a necessary rule is proper protect privacy. and to . . . provision -integral part thus system forms an of limitar
529 law Congress provide and-seizure for to for suppres sion of in explicit statutory- evidence obtained violation of States, prohibitions. Nardone United v. U. S. States, (1937); Nardone v. United (1939).18 S. 338 U.
IV n Even though suppression of the wire communications intercepted under re- 16, 1970, the October quired, the Government nevertheless contends that com- designed protect Along privacy. tions to civil with criminal and remedies, guarantee it should serve to that the standards new of the chapter sharply interception will curtail the unlawful of wire oral communications. (10) (a)] be
“[Section must read with connection sections 2517, above, provides 2515 and discussed which it limits. It n - remedy right [Except for the created section its 2515. for grand inapplicability jury proceedings to an absénce of intent grant jurisdiction Congress,] [otherwise, to to federal courts over scope provision comprehensive.” is intended to be suggestion that We find without substance the Government’s (1) (c) since 18 C. makes criminal “willful” dis U. S. §2511 “knowing intercepted, communication, closure of of an contents having through to reason know that information was obtained of a wire or oral communication Violation subsection,” propriety suppression and 2515 ties the of evidence “disclosure,” impropriety statutory to the to hold that viola its Department’s approval tions the Justice internal committed respect procedures wiretap applications preclude submission with Congress disclosure in court would be to attribute intent impose penalties processing “every substantial criminal defect in applications.” Apart Brief 38. for'United States from the fact that majority Chavez, post, p. a Court in v. has United States every suppression, concluded that not defect-will warrant it is evident impose liability does not criminal unless disclosure is §2511 “willful” and was ob unless known have been information (l): Clearly, tained in violation of under circumstances §2511 suppression necessarily which required would evidence are not the same as those under which criminal violation of III Title would .be found. *21 6 extension under intercepted the Novémber
munications de- not “evidence they are order because are admissible intercepted rived” from contents communications meaning within the of §§ under the October position untenable. (10)(a). is and 2518 This on the stand Under extension ordеrs do not § provided but are footing original same as authorizations may granted, for separately. “Extensions an order for an only upon application but extension made ac- (1) of this section cordance with subsection (3) making required by court subsection findings (5). (1) (e), ap- this section.” Under subsection plications previous must applica- for extensions reveal orders, (f) tions and and under must state- contain “a forth ment the results obtained from setting thus far explanation or a reasonable failure interception, to obtain application, such results.” Based on court required, findings make the same are that required in connection original with the order; is, that it found only must be probable not that there is cause in the traditional investigative sense and that normal procedures are unlikely to succeed but also that there probable cause for believing particular communi- cations concerning the offense will be through obtained the interception and believing the facilities or place from which the wire or oral communications are to be intercepted are used or will be used in connection with the commission of such offense or are under lease to the suspect or commonly used him. (3). § 2518
In its November 6 application, the sought Government authority the conversations of only Giordano, who alone was expressly named in the initial application and order, but of nine other named persons who alleged were to be involved with Giordano in nar- cotics violations. Based on the attached it was affidavit, alleged there probable was cause to believe that *22 would involved concerning the offense communications and between Giordano particularly those intercepted, be others as those with individuals, as well the other named in the telephone listed that the yet and unnamed, as sought was monitoring whose ñame of Giordano and will being and is used and be “has been used, continued the commission' of used, in connection be with App. offenses described.” 62.
In supporting application, the affidavit United applications incor- previous orders, States out the set porated by “facts, reference details and reasserted the in supporting and conclusions contained affidavits” [the] prior wiretap application, down in and set detail existing relevant communications overheard under the order, physical as well as the movements Giordano as the around-the-clock observed result an surveillance had been App. conducted 65- authorities. (cid:127)81. The analyzing Government concluded “[a]fter intercepted conversations and from tele- [Giordano’s phone] and the results of BNDD surveillance” that nine listed only some identified individuals, by aliases, were associated with Giordano suppliers buyers as in illegal narcotics trafficking and persons that certain other were perhaps connected with operation yet an as undis- Id., closed fashion. at 79-80. It was also that the said full scope of organization yet Giordano’s was not known. Id., at 80. Assertedly, Giordano extremely was guarded telephone his “any conversations, specific narcotics conversations he makes are pay from phones” and “[conventional surveillance would completely be ineffec- except tive adjunct as an to electronic interception.” Id., at 81. The United States accordingly requested extension of the interception order for no longer than a 15-day period. apparent
It is from the foregoing that the communica- intercepted pursuant tions to the extension order were invalidly communications derived from
evidence In first order. the' pursuant to the' initial intercepted granted the order application sought place, the communications various authority initial order. It mentioned named individuals not plain from affidavit submitted information the- persons through most of was obtained about these plain It illegal interceptions. equally initial telephone accompanying surveillance monitoring necessarily operations, coordinated intertwined. As were the Government' the surveillance and conven- asserted, “would, tional investigative techniques completely except adjunct intercep- ineffective as an to electronic *23 tion.” That the extension interceptions order and the product under it were not in fact the elec- the earlier tronic surveillance incredible. is an
Second, extension order validly could be granted only upon application complying with subsection (1) of (1) (e) requires §2518. Subsection fact the prior applications (1) and orders be rev.ealed, (f) application directs that set out either the results prior obtained under the explanation order or an for the absence of Plainly such results. the function of 2518 (1) (f) permit realistically appraise the court probability that relevant conversations will be overheard in If the future. during the initial period, no communi- kind, cations that had anticipated been had been overheard, the requires Act. an adequate explanation for the failure necessary before the findings can be made as predicate to an extension order. But here there were results, they were in set out great detail. they Had been omitted no extension order at all could have been granted; but with them, there were sufficient facts to warrant the trial court's finding, in accordance with (b), probable §2518 cause to believe that wire communications concerning the offenses involved “will as interception,” App. 83, through be obtained (3) (d) with finding complying §2518 well as.the Giordano’s believe that probable there was cause to and will telephone used, being used, been “has in connection the commission used, with used commonly offenses above and is described persons. . . .” nine Nicholas Giordano other named Ibid. in obtained
It is dissent that information urged may be from the October order illegal ignored remaining and that evidence submitted support sufficient extension was application, extensión order. But not the whether without from obtained Giordano’s monitoring facts telеphone, independently support wiretap would original Act prior itself forbids extensions authority, authorizations without consideration of the mean- results while obtained. Obviously, presented, those results were considered, and relied on in pre- this case. Moreover, as viously noted, Government itself had stated wire interception an indispensable was factor in its inves- tigation ordinary and that surveillance alone would have been insufficient: In view, our the results conversations overheard under the initial were essential, both fact and law, extension of the intercept authority. Accordingly, communications intercepted under the order are derivative extension evi- *24 dence and suppressed.19 must be The judgment of the Court Appeals of
Affirmed. concurring* opinion [For Mr. of Justice Douglas, see post, 580.] p. 19We are also the view that the evidence obtained from the extended authorizations October and November 6 for the installation and use of pen register device on Giordano’s THE COURT OF TO
APPENDIX OPINION. III, Crime Title Omnibus Provisions Relevant 1968, Act of and Safe Streets Control §§C. 2510-2520 U. S. oral com- wire or and disclosure interception
§ 2511. prohibited. munications in this specifically provided otherwise Except as chapter any person who— or intercept, willfully endeavors to intercepts,
(a) to intercept or endeavor any person other procures communication; any or oral intercept, wire any use, procures willfully or (b) uses, endeavors electronic, any to use- person to use or endeavor other com- oral or device other mechanical, munication when— or trans-
(i) to, device otherwise such is affixed like wire, cable, or other signal through, mits a communication; connection used in wire (ii) such device transmits communications radio, or interferes with transmission such communication;
(iii) person know, knows,, such or has reason telephone was inadmissible because from the invalid wire derived supra. began appli- on October n. 16. See logs telephone cation for the October extension attached conversations monitored under the October 16 asserted logs revealed telephone these use “continued . . . regarding illegal trafficking .App. conversations 55. narcotics.” these, circumstances, appears illegally In it to us that monitored extending should critical conversations considered a element register pen authority. nothing We have been furnished with pen register to indicate extension of November should be accorded treatment. different *25 been has thereof component any or device such or in interstate transported or mail through the sent or commerce; foreign place (A) takes use to use or endeavor
(iv) such commercial pr other any business of premises on the inter- affect of which operations establishment or is obtains (B) commerce; or foreign or state relating to the information obtaining purpose commercial or other any business operations inter- affect of which operations establishment or foreign commerce; state or of Columbia, in the person District (v) such acts territory any or Rico, of'Puerto the Commonwealth States; of the United possession or disclose, willfully discloses, or. endeavors (c) com- any or oral any person other contents wire know that having or reason knowing munication, interception through obtained the information was of this in violation or oral communication a wire . subsection; or the contents willfully use, or endeavors to
,(d) uses, having or communication, knowing wire or oral obtained information was reason to know that communica- of a wire or oral through of this subsection; tion violation not $10,000 imprisoned fined more than or shall be or both. more than five years, chapter (a) (i) It shall not be unlawful under this operator employee, switchboard, officer,
for an of a agent communication common whose carrier, communi- are used in the of a wire facilities transmission cation, intercept, disclose, or use that communication in the course of his employment engaged while normal any activity necessary incident to the rendition which *26 protection prop- of or rights of his service or to the Provided, erty of the carrier of such communication: That said communication common carriers shall not except utilize or random observing monitoring service quality for mechanical or service control checks. It be (ii) chapter shall not unlawful undér this for an employee, agent any or of communication com- officer, provide mon carrier to information, facilities, or technical investigative assistance to an or law enforcement officer pursuant to who, intercept this is authorized to chapter, a wire or oral communication.
(b) It not be chapter shall unlawful under this for an officer, or of employee, agent the Federal Communica- Commission,, tions in employ- the normal course of his ment and discharge responsibilities of the monitoring .by exercised Commission in chap- enforcement ter .5 title intercept the United Code, 47. States to a wire communication, or oral communication trans- mitted or radio, to or disclose information use the thereby obtained. this,
(e) It shall be unlawful chapter under for a person acting under color of law to a wire oral communication, where person such is party a to the of one parties communication of the to the communica- tion given prior has consent to such interception.
(d) It shall not be unlawful chapter under this person not acting under color of law intercept to a wire or oral communication where such person party is a the communication or where one of partiés to the communication given has priqr consent to such inter- ception unless such communication intercepted for the purpose of committing criminal tortious act in violation of the Constitution or laws the United States or of State or for the purpose of committing any injurious other act. chapter or in contained section
(3) Nothing this (48 1143; ofAct Stat. 605 of the Communications power 605) 4 C. shall limit the constitutional U. S. neces he deems to take such measures as President . potential actual or sary against the Nation protect power, attack or other hostile acts of a to obtain foreign deemed, foreign intelligence information essential to security protect States, United or to national security foreign intelligence information activi against shall anything chapter ties. Nor contained limit power deemed to the constitutional the President necessary protect take as he such measures deems *27 of against the United States the overthrow the Govern any ment force or other unlawful or against means, present other danger ciear to the structure or exist any ence of of or the Government. contents wire The oral intercepted by authority communication of the in the of powers may President exercise be foregoing received in evidence any pro trial or hearing, other only where ceeding interception was reasonable, such shall not be or otherwise used except disclosed neces as is sary implement power. to
§ 2515. Prohibition of use as intercepted evidence of wire
or oral communications. Whenever any wire oral or in- communication has been part' no tercepted, the contents of such communication and no evidence may derived therefrom received in any evidence hearing, or other trial, proceeding, in or any before court, grand jury, department, agency, officer, regulatory body, legislative committee, or authority other States, a State, or a political United subdivision thereof if disclosure that information would be violation, of this chapter.
538 or oral interception of wire 2516. Authorization
communications. Attorney or Assistant .(1) General, Attorney General, designated by the specially General com- judge Federal application to a may authorize an in con- may grant for, judge and such petent jurisdiction chapter an order formity 2518 with section or oral interception of wire authorizing approving or Investigation, by the Federal Bureau of communications for the investi- having responsibility or a agency Federal as to which the gation made, offense may provide provided or has when such evidence of— by imprison-
(a) any punishable by death or offense year 2274 ment for more than one under sections through 2277 of title 42 of Code the United States (relating Energy to the enforcement of the Atomic 1954), chapters Act of or under of this following chapter (relating chapter title: to espionage)-, trea- (relating sabotage), .chapter (relating son), chapter (relating riots); (c)
(b) violation of 186 or section section title United Code with restrictions (dealing States payments loans labor organizations), robbery, offense which kidnapping, involves murder, *28 or punishable and extortion, title; which is under this any
(c) punishable offense which is under the fol- lowing of sections this title: section 201 of (bribery, public and witnesses), (bribery officials section 224 in sporting contests), (d), (e), (f), (g), (h), subsection (i) or of (unlawful section 844 of explosives), use sec- (transmission tion 1084 of wagering information), section 1503 (influencing or injuring officer, juror, or witness generally), section (obstruction 1510 of investigations), criminal section (obstruction 1511 of
539 (Presi- or local section 1751 enforcement), State law assault), section assassinations, kidnapping, dential or vio- (interference with commerce threats 1951 or (interstate foreign travel section 1952 lence), of sec- transportation racketeering enterprises), aid influence (offer, or acceptance, tion solicitation employee of benefit operations plan), section of of sec- (prohibition enterprises gambling), business (theft shipment), tion 659 from interstate section (embezzlement pension sec- funds), from and welfare (interstate 2314 and transportation' tions stolen respect section property), (violations with corrupt organizations) racketeer influenced and or (violations respect congressional section 351 with assassination, kidnapping, assault);
(d) any involving counterfeiting punishable offense 472, undеr section or 473 of 471, title; this (e) any involving bankruptcy offense fraud or the manufacture, importation, buy- concealment, receiving, - ing, selling, or otherwise dealing narcotic drugs, or other marihuana, dangerous punishable drugs, under any of the United States; ]#w any
(f) offense including extortionate credit trans- actions under 892, sections or 894 of this title; any
(g) conspiracy to commit any the foregoing offenses.
(2) The principal attorney prosecuting State, or the principal prosecuting attorney political subdivision if thereof, attorney such is authorized of that statute State to make to a State court judge competent jurisdiction for an order authorizing or approving wire oral communi- cations, may apply to such judge for, and such judge may grant conformity with section 2518 of chap- *29 the, an order applicable State statute and with
ter interception or oral approving wire or authorizing, offi- investigative or law enforcement communications for responsibility investigation having cers such application made, as to which the when offense may provide provided has of the interception or evidence gam- kidnapping, commission of the offense murder, bling, bribery, or in narcotic robbery, dealing extortion, dangerous drugs, or or crime drugs, marihuana other other dangerous life, property, punishable and limb, or imprisonment year, designated for more than one applicable or authorizing interception, State statute such any conspiracy to foregoing commit offenses. interception § 2518. Procedure wire or oral communications.
(1) Each application, for an authorizing approving of a wire- communica- o'r oral tion shall be made writing upon oath affirmation a judge competent jurisdiction shall state , applicant’s authority application. make such Each application shall-include following information:
(a) identity investigative of the or law en- forcement officer making the application, and the officer the application; authorizing
(b) a complete full and statement of facts upon by circumstances relied the applicant, to justify his belief order should issued, including (i) particular details as offense has is being, or is about tó be been, committed, (ii) particular description a of the. nature loca- tion from which place facilities or the where to be intercepted, (iii) par- communication description ticular -of the type of communications *30 identity (iv) intercepted, be sought to and whose known, committing if offense person, intercepted; are to be communications to complete as whether (c) a full and statement procedures have been investigative other or not n tried and failed reasonably why they appear or to or unlikely dangerous; to if tried to be too be succeed period which (d) a of of time-for statement If interception required maintained. investigation the nature of the is such authorization for should not automati- cally com- type when described of terminate particular munication has been a obtained, first description probable establishing facts cause believe that additional communications same type will occur thereafter;
(e) complete a full and of the facts statement ¿11 previous concerning known to the applications individual authorizing making application, made to judge to intercept, for authorization approval or for or interceptions of, wire com- oral munications involving persons, 'the same places specified facilities or in the application, action taken the'judge on such applica- each tion; and
(f) application where the is for the extension of an order, statement setting the results thus a forth far obtained from the interception, or a reasonable explanation of the failure obtain such results. (2) may The judge require . the applicant -to furnish testimony additional or documentary in support evidence application. Upon such may judge enter an parte ex order, requested as as modified, authorizing or approving interception of wire oral communications in which jurisdiction of the'court the territorial
within basis, determines on the judge if the judge sitting, tfyp applicant that— facts submitted am cause for belief that probable (a) there is committed, or has is about' committing, individual is eftumerated section particular offense commit of this chapter; par- probable cause for belief that (b) there is that offense will ticular communications ¡concerning through -such be obtained interception; procedures have been (c)- investigative normal reasonably appear failed or to be. triéd and. have *31 tried, or unlikely dangerous;- if to be too to succeed (d) probable cause for belief that the there is place the wire ^which, where, from or the1 facilities communications, intercepted are to are or be oral; or are to be being used, about used; connection the or offense, with of- such are leased commission to, commonly name Used such of, listed the or person.
(á) intercep- order or the authorizing approving Each any specify— tion of wire or oral communication shall idéntity the of .(a) known, if person, the whose are intercepted; communications to be -(cid:127) (b) the nature and location the communications which, facilities or place where, authority as. granted; is (c) particular a description of type of communi- sought cation to be intercepted, and a statement of the particular to which it relates; offense pf
(d) the-identity agency authorized to inter- eept the communications, and of person thé author- , izing application; and (e) period during which intercep- such time authorized, tion including a is statement toas whether automatically or terminate interception not the shall has been first the described communication when obtained.
An' a or interception order of wire oral authorizing shall, upon request communication the applicant, landlord, direct that a common carrier, communication person applicant custodian or other shall furnish assist- information, forthwith all technical facilities, .necéssary accomplish ance unobtru- interception sively and with minimum interference the serv- with carrier, custodian, person ices that such landlord, according person are to be whose communications communication Any intercepted. carrier, common land- lord, person furnishing custodian or other such facilities compensated technical assistance be therefor shall the applicant at prevailing rates.
(5) may No order entered under section authorize or approve wire or oral communi- cation any period for longer necessary than achieve objective nor in event authorization, longer thirty days. than may Extensions of only upon application but granted, an extension made in accordance with subsection (1) of this section and the court making findings required by subsection *32 this period section. The longer extension shall be- no than the authorizing judge necessary deems to achieve purposes for which it granted was and in no event for longer thirty days. than Every order and extension thereof shall contain provision the authorization to intercept shall be executed as as practicable, soon shall be conducted in way such a to minimize the intercep- as tion of communications not subject otherwise to inter- ception under this chapter, and must upon terminate attainment of the authorized objective, or in any event thirty days. interception is authorizing an order
(6) Whenever require may the order chapter, this pursuant entered order who issued judge made to to be reports achieve- toward been made has progress showing what con- need for and the objective of the. authorized ment such made at reports shall be Such interception. tinued may require. judge as intervals chap- of this any provision other Notwithstanding specially officer, or law enforcement any investigative ter, principal or by the General designated thereof or attorney any State subdivision prosecuting who reason- of that to а statute acting pursuant State, ably that— determines respect exists with
(á) emergency an situation secu- threatening national conspiratorial activities characteristic conspiratorial activities rity interest or. or com- a wire oral requires crime that organized an authoriz- intercepted before order munication to be can be 'interception diligence with ing such due obtained, could upon an order
(b) grounds there are which chapter under to authorize such entered interception, if an
may intercept or oral communication such wire is application approving interception for an order forty-eight made accordance with this section within interception begins has occurred, hours after the interception In occur. the absence an such order, immediately when the communication shall terminate obtained or when the order sought is In denied, appli- whichever is earlier.. event such approval denied, cation for other where case is terminated having without been or oral issued, contents wire communica- shall be intercepted having tion treated been as obtained *33 inventory chapter, and shall be in violation of this an in of (d) for subsection this section provided served as application. person on the named any or oral communica- (8) (a) The contents of wire any chapter by this intercepted tibn means authorized tape if shall, possible, be recorded on or wire or other comparable of of device. the contents recording The wire or oral communication under this subsection any way be a will protect recording shall done such as Immediately editing upon from or.other alterations. period expiration order, or extensions thereof, such shall be made recordings available to judge issuing such order and sealed under directions. his Custody of the shall recordings judge be wherever the They except orders. destroyed upon shall not be order of or judge any issuing denying event kept years. shall be for Duplicate may ten recordings be made use pursuant for provisions disclosure to the (1) (2) chapter subsections of section 2517 of this for investigations. presence provided of the seal for by this or a subsection, satisfactory explanation for the thereof, absence be prerequisite shall a for the use dis- closure the contents of wire or oral communica- tion or evidence derived therefrom under subsection of section 2517.
,(b) Applications made granted and orders under this chapter be judge. shall sealed Custody applications and orders shall be judge wherever the directs. Such applications and orders be shall disclosed only upon showing a of good cause judge before competent jurisdiction and shall be destroyed except on order of the issuing or denying judge, in . years. event kept shall be ten (c) Any provisions violation of this subsection may punished contempt' as of the issuing or' denying judge. *34 ninety later than but not time a reasonable
(d) Within of for an order of an days filing the after or which is denied (7) (b) section 2518 approval under or extensions period an order the of of the termination to be cause denying judge or issuing thereof, the shall appli- order or the in the persons named served, on the intercepted communica- parties to cation, and such other his may in discretion determine judge the tions as inventory which shall in of interest justice, the. of— include notice order or the entry of the
(1) the fact of the application; period author-
(2) entry date of the and the of the the or is;ed, approved disapproved interception-, or application; denial.of
(3) wire com- during period the fact that or oral intercepted. or were not munications were may upon filing of discre- judge, motion, a his tion person make or. his such counsel available inspection portions intercepted such communica- tions, applications judge orders as determines be in justice. parte showing interest an ex On good jurisdiction a judge competent -cause to the serv- ing inventory required by may be subsection postponed.
(9)' any intercepted The contents of wire or oral com- munication or evidence therefrom derived not be shall received in evidence or any otherwise disclosed trial, or other hearing, in a or proceeding Federal State court party, days less ten trial, unless.each before the than hearing, or proceeding, has been furnished copy with a order, court accompanying under application, which the was authorized or approved. may This ten-day period the judge waived if he finds possible it was riot to furnish the party with hearing, days trial, ten before information above prejudiced not be party will proceeding or and that delay such information. receiving any hearing, person, in Any trial, (a) aggrieved proceeding court, officer, or in or before department, authority of United or other agency, regulatory body, thereof, may State, political or a subdivision States, contents, wire suppress intercepted move to therefrom, oral evidence derived communication, on the grounds that— unlawfully intercepted;
(i) the communication was *35 (ii) approval or under of authorization intercepted face; which- it was on' is insufficient its or
(iii) the interception was not made conform- ity with the order of approval. authorization or- Such motion shall be made or trial, hearing, before the proceeding unless there no such opportunity was to make motion person or the was aware the grounds, the motion. If the motion granted, the contents intercepted wire or oral communication, or evidence derived therefrom, be shall as having treated been obtained in violation of this chapter. upon The judge, filing such motion person, may the aggrieved in his discretion make available aggrieved person or his counsel inspection portions such for of the inter- ¿s cepted communication or evidence derived therefrom the judge to be in determines justice; interests of
(b) In any addition to other right to appeal, United States shall have right, appeal from an order granting a suppress motion to para- made under graph. (a) of this subsection, or the denial applica- .of tion for an order of if the United approval, States attor- ney certify shall to the judge or other official granting such or motion denying such appeal appeal delay. shall purposes Such taken for
is not the order was thirty days the date after taken within prosecuted. shall be diligently entered damages civil authorized. Recovery of § 2520. Any is inter- communication wire or oral person whose pr chapter this in violation of cepté!, used disclosed, any,person (1) against a of action shall have cause civil any other discloses, uses, procures or intercepts, who ór communications, such person disclose, or use intercept, person— from such be entitled recover (a) damages 'liquidated but not less than actual day each computed $100 at the rate damages day $1,000, higher; violation whichever of.
(b) punitive damages; and attorney’s fee other (c) litigation a reasonable reasonably costs incurred. order,
A authorization, faith good reliance on or legislative a-court complete shall constitute a defense to chapter civil or criminal action under brought any" under law. other
Mr. Justice with whom Powell, Justice, Chief *36 Rehnquist Mr. and Mr. Justice Blackmun, Justice join, concurring part dissenting part. and in by
I agree majority with the the authorization the of the Attorney Executive Assistant to the General application interception for the October 16 order contra- statutory vened 18 C. § U. S. and that remedy of suppression evidence derived inter- all from under, I join ceptions made order. therefore Parts III opinion of the I, II, the Court/ For the I below, however, stated dissent from the Court’s reasons conclusion, stated Part IV its opinion, that evidence orders “pen extension register”1 under two obtained of the 6 extension the November under suppressed. also order must 8, 1970, facts. pertinent On October
These are ¡States United District Court Judge of the Chief pen a the use of Maryland authorized District 14-day period for a and record devieé to monitor register rеspondent telephone dialed from a listed all numbers dispute pen register There is no Giordano. therefore probable based on cause was was On 16, lawful under the Fourth Amendment. October an order authorizing issued District Court interception of wire communications to and from Gior- telephone period days. dano’s for a not to exceed 21 dispute wiretap There is likewise no that the order was probable based on cause. The defect for this order was not the strength of Government’s on the showing request merits its but the authoriza- application by tion of the the Executive Assistant General rather than spe- one officials cifically designated in 18 U. C. 2516 (1) S. . As a procedural result of irregularity both the contents intercepted communications under the October 16 wiretap order and “evidence derived therefrom” must be suppressed. 18 C. §§ U. S. (10) (a). 2515 and 2518
The authorization for use of pen register device extended dated orders October 22 was and Novem- register pen 1 A is a mechanical given device attached to a telephone usually line and telephone installed at facility. a central paper tape It records all numbers dialed from that line. It does, identify telephone not incoming numbers from which calls originated, any call, nor does it reveal whether incoming either outgoing, completed. was use Its does monitoring involve telephone complexities conversations. The mechanical pen aof register explicated opinion are in the of the District Court. 1033, 1038-7-1041 Supp. (Md. 1972). F. *37 also District Court date latter the. On the ber 1970. addi- maximum authority intercept extended were All three extension orders days.' of 15 period tional obtained part, but on evidence' only part, based 16. October wiretap order of invalid under the original unlike the order, extension wiretap improper by the defect order, was marred ' authorization. . all evi- aside putting that, contends The Government order, wiretap original from invalid dence derived submitted and untainted evidence independent probable for issu- cause Court- constituted the District' wire- pen extension and the register ance of both orders also satis- the latter case tap order, extension by C.. imposed 18 U. S. requirements fied the additional issues in Preoccupied the-larger with (3).2 §2518 con- case, summarily dismissed the District. Court pen register as related to the extension tention insofar it orders: sup- orders are not subsequent
“The extension ported probable cause, sufficient .of showings §2518(3), required 18 U. S. make Under C. the court is ' following determinations: “(a) probable is is there cause for belief an individual committing, committed, particular has or ‘about to commit a ' chapter; offense enumerated in 2516 of this section “ (b) probable particular .there is cause for belief that conmmnica- ' concerning through tions will offense be obtained such interception; “(c) investigative procedures normal have been tried and have
failed,
reasonably appear
unlikely
or
be
if tried or to
succeed
be too dangerous,^
“(d)
probable
there
cause for belief that
the facilities from
which,
place where,
wire
oral communications are to
.or
intercepted
being used,
are
used,
or are about
to be
in connection
such,
with
offense,
the commission of
to,
or are leased
listed in the
of,
commonly
name
person.”
used
such
*38
wa,s used
information
for the reason
however,
III
from a Title
orders
those extension
to obtain
in this
later
which,
appearing
for
wiretap
reasons
po.sonous
‘fruit of the
defective, The
opinion, was
pen
suppression
doctrine
the
all
requires
tree’
subsequent
under
register information obtained
the
..,
States,
v.
The Court of not mention (CA4 F. 1972). 2d 522 respect wiretap neither the extension,
With Appeals Court nor the District Court addressed Government’s contention communications inter cepted derivatively under the extension were not tainted improper original in the wire defect authorization tap and neither finding cflurt made order, The simply contention. District Court wire found tap appli extension order invalid on a ground different cable both original extension and to order. Specifically, the original court concluded wire tap order was unlawful because application for it misidentified the approving officer and therefore failed' strictly comply provisions with the of 18 U. S. C. §§2518 (l)(a) The misidentificatioh prob (4)(d). lem occurred in the application for the original wiretap order and in application wiretap extension. The District Court held the extension order invalid on that basis alone and ordered the evidence pursu obtained ant suppressed thereto for that reason.3 The Court of 3 Immediately stating after its conclusion that the misidentification problem required suppression, the District Court made its sole reference to the November 6 extension order: application relating
“The and order to the extension the wire- entirely. It held ground different on a affirmed Appeals for it because the invalid original to the Assistant by the Executive approved had been officials one of the than rather General defect (1). C. designated 18 U. S. misidentification unlike the authorization, improper wire original arose in connection with the only problem, simple oversight, Court through tap Perhaps order. of the evidence to consider the fate Appeals failed lower under the extension. Thus-neither obtained *39 question. ruled on derivative evidence courts Today suppression affirm of evidence obtained we wiretap order same reason under for the original by Appeals improper adopted defect Court —the did not above, authorization. As noted this defect occur (cid:127) application wiretap for the extension order. Today approv- also we hold that misidentification of the authority not render evidence ob- ing does inadmissible pursuant interception order. United resulting tained to a Chavez, v. p. States removes post, 562. This decision by sole basis the District for suppressing advanced Court telephone interceрted wiretap conversations under the requires extension order and us to consider whether that by suppressed evidence improper should be reason of the application authorization of original for the order. In doing important so it that we are the note first aspect consider court the case. majority
The holds that the invalidity of original wiretap suppression requires of all evidence tap are defective original for the same reasons as the Supp., and order.” F. at 1060. Plainly, this reference to the “same concerns reasons” the failure comply literally §§2518(1) (a) (4) (d) with identification requirement: nothing and- -has to do with derivative-evidence rule. my In view orders. the three extension
obtained under principles, case of well-established application to this consti- by courts to effectuate developed principles to effec- adopted by Congress guarantees tutional III, demonstrates statutory of Title guarantees tuate the will majority’s appear, conclusion is error. As but analysis all three governs orders, the same extension my pen may position to deal with the clarify it two I, below, in Part and to reserve register extension orders wiretap of the November 6 of the discussion extension for Part II.
I to monitor pen register installation of a device particular tele and record the numbers dialed from a phone governed line is not Title III. This was conclusion of the District Court in the instant case and King, of the courts in United States v. Supp. 335 F. 523, Vega, and United States v. (SD 1971), 548-549 Cal. 52 F. (EDNY 1971). R. D. conclusion This rests on the fact that the device does not hear sound accomplish any and therefore does “interception” wire communications as that term is defined 18 U. S. C. aural acquisition § 2510 —“the contents *40 wire or oral communication through the use of elec tronic, mechanical, (emphasis other device” added).. Any doubt of the correctness of interpretation this is allayed reference legislative history of Title III. The Report of the Senate Committee on the Judi ciary in discussing the scope of the explicitly statute states ‘pen use of a register,’ “[t]he for example, would permissible.” be Rep. S. No. 1097, 90th Cong., 2d Sess., . (1968) 90 pen
Because register a device is subject not to the provisions of Title III, permissibility of its use law enforcement depends authorities entirely on com-
554 requirements
pliancé the constitutional with In Amendment.4 this case the Government se- Fourth purpose a. equivalent for this order, cured a court two extensions of its warrant, for each search pen register. to use a The District Court authorization because these extension to assume that orders Seemed in' on information part evidence, tainted ob- were based - necessarily suppressed be pursuant tained thereto must poisonous tree” doctrine. F. under the “fruit of Supp., at 1041. That not the law. States,
The v. United District Court relied Nardone (1939). U. In the Court held S. that decision statutory unlawfully prohibition that obtained evi dence encompassed well. But the derivative evidence as Court also reaffirmed un the connection between activity may lawful and evidence offered at trial become id., dissipate “so attenuated taint,” as at improperly thait facts may obtained nevertheless provéd knowledge if of them independent is based on an source. Ibid. In its aspect, constitutional principle by Wong illustrated States, Sun v. United U. S. 471 (1963). is, in It essence, the derivative taint illegal activity does not extend to the ends of the only earth but until dissipated it is by an intervening event. Of course, presence independent of an source alwáys would suffice. independent-source rule has as much vitality
the context of a search warrant as Thus, other. for , example, unlawfully discovered facts may serve as.
the basis for a valid search warrant if knowledge them suggests The Government the use pen register of a reay not constitute a search within meaning of the Fourth'.Amendment. I need question, my address view constitutional the. guarantee, assuming applicability, its was satisfied in this case.
555
See,
source.
lawful
independent
from an
is-obtained
(CA10
States,
2d 792
F.
344
v. United
Anderson
g.,
e.
corollary is
well-estаblished
obvious
1965). The
alle
tainted
indisputably
in an
inclusion
affidavit
resulting warrant
render
necessarily
gations does
suppress
motion
on
inquiry
ultimate
invalid.
a
evidence,
not whether
a 'warrant
pursuant
seized
on
based
allegations
affidavit
contained
underlying
aside
putting
whether,
but
evidence,
illegally obtained
in
lawful
and'
independent
allegations,
all tainted
probable
to show
suffices
stated
the affidavit
formation
D.
States, 135 U.
App.
C.
James
United
v.
S.
cause.
States v.
United
(1969);
1151
1150,
F.
314, 315, 418
2d
States
United
Sterling,
(CA3 1966);
799,
2d
802
369 F.
United
Tarrant,
(CA5 1972);
703-704
701,
460 F.
v.
2d
Koonce,
Howell
1973);
379
States
374,
(CA8
v.
F. 2d
;
Kay
Chin
(CA9
v.
Cupp,
1970)
v.
427 F. 2d
States,
United
(CA9 1962).5 Judge
Weinfeldraptly stated the. stein, 1965): Supp. F. 80 (SDNY contrary, the and none to “There authority, con- upon affidavit a issues
that when warrant ' the taining improper grounds, and proper both and than more proper grounds alone —are —considered cause, in- finding probable support a .sufficient the improper grounds vitiate clusion of the does Id., at the warrant.” entire and invalidate affidavit * 82.
I
precedent
contrary.6
holding
know of-no
to the
,..
pen register
principle
of this
to the
original
clear
doubt. The
beyond
orders is
extension
pen register
showing
probable
order
a
was based on
fact,
only
colorable-support
lending
In
are
two
there
cases
even
Circuit,
contrary
a
neither
view.
are from the Sixth
Both
can be
In
general proposition
the
stated above.
said
contradict
Langley,
(1972),
United States v.
2d 27
the
con
F.
court
validity
sidered the
of a warrant
issued on
basis of
the
information
previous
obtained in a
the
search. The court held
warrantless
prior
large part
validity
search valid in
and affirmed the
warrant
the
despite
for
second
the
in
search
inclusion
the affidavit
allegations
aspects
based on the unlawful
of the first
Al
search..
though
principle
above,
the case therefore
illustrates
stated
following
court
emphasized
added the
comment: “It must be
where
comprises
such tainted
very
information
more than a
minor
portion of
supporting
search,
that found in an affidavit
a warrant to
Id.,
must
warrant
(emphasis
original).'
held invalid.”
at 35
The other
Nelson,
case is
(1972),
United States v.
The.basis for the conclusion to the contrary apparent. is far from In the opin- final to its footnote ion, the Court states that the evidence obtained under the' defective original wiretap order “should be considered a critical element in extending pen register authority.” The majority suggest, does not however, that the original pen register order was based on anything less prob- than able cause. Nor it deny does that the suppor bing affidavit pen extension of the register fully authority in- fin; corporated the earlier untainted allegations. And, idly, majority does not contradict the principle established that a warrant based on an containing tainted affidavit allegations, may nevertheless be if independent valid and lawful information stated in the affidavit shows probable In cause. light of significant these silences, the majority’s bare assertion that the tainted evidence ob-' tained original under the wiretap order was a “critical element” the extension pen of the register authority is, me, unexplained conclusion—not rationale.
II pen register extensions, wiretap Unlike the exten- governed by sion order of November III. Title provisions prescribe pro- of that statute an elaborate . cedure for the lawful of wire communica- tions. To the extent the statutory requirements of an issuance are nonconstitutional in nature, ‘rule exclusionary adopted to effectuate the Fourth Amendment pertain does not vio- their The statute, however, lation. contains its own exclu- sionary rule, scope § 18 U. C. 2518 (a), S. suppression remedy is defined 18 U. C. 2515 S. to include derivative evidence:
“Whenever-any wire or oral'communication has part intercepted, been no the contents such communication and no evidence thеrefrom derived may be received in evidence in trial .. . The "obvious and familiar model statutory for the ban on the use of-derivative evidence was the constitutional doctrine poisonous “fruit of the tree,” and the *44 legislative history confirms Congress that intended the phrase “no evidence derived therefrom” incorporate that doctrine and applicable render it statutory to certain violations of nonconstitutional dimensions. The Senate Report point makes the explicitly: 2515], largely
“[Section existing reflects law. It applies to suppress evidence directly (Nardone v. United 302 U. States, S. 379 (1937)) or indirectly obtained in violation of chapter. the (Nardone v. States, United 308 U. S. 338 (1939).) There is, however, no intention to change the attenuation rule. See Nardone v. United States, 127 F. 2d. 521 (2d), cert. 316 denied, U. S. 698 (1942); Wong Sun
559 States, United 371 U. S. Rep. (1963).” 471 S. v. 2d 96. 1097, 90th Sess., No. Cong., depends validity wiretap order of a although the Thus, statutory in conditions of certain satisfaction the probable of requirement to the constitutional addition I opinion is principle developed in Part of this the cause, wiretap extension fully applicable to the November application question order. The is whether in part intercepted on communications order relied that putting order but original under invalid whether, independent evidence, that and lawful aside tainted supporting information affidavit suffices to stated probable both cause and of the various show satisfaction United States v. III.7 requirements additional of Title majority" fully principle, to believe seems while original applicable orders, wholly wiretap inapplicable is to ex This, least, tension orders. at is the most reasonable construction majority’s (f). (e) Ante, discussion of and at 532-533. §§ provisions require application Those that an for an extension order complete “a full concerning include and statement of facts all previous applications” setting and “a statement forth results According thus far obtained from the to the ...” majority, complied the fact that law enforcement authorities with (i) (e) by including (f) application in the for the exten §§ regarding necessarily sion order wiretap information earlier automatically regardless rendered invalid, the extension order independent whether and untainted information in ihe requirements for the extension satisfied the of the Fourth Amendment (3). and §2518 respect, baffling all I interpretation With find this a of the statute. Certainly nothing language history there is in the (1) (e) §§ (f) suggest Congress provisions intended these except all independent-source extension orders from the doctrine. Nor any suggestion language there history which statutory analogue is the constitutional .to doctrine of the fruit poisonous Congress tree, distinguish intended to between original wiretap orders and in determining extension orders the extent suppression remedy. Finally, nothing there logic
Iannelli, States (WD 1972); United Supp. 339 F. Pa. Ceraso, 1973). v. Supp. (MD F. Pa. was wiretap éxtension order application
The from supported by supervisor of a group affidavit The Drugs. the Bureau of and Dangerous Narcotics submitted same officer had sworn to one of two affidavits in support wiretap for the original agent order. other had been filed aby narcotics supervision under his within their acting and stated facts joint In knowledge. order, the affidavit for extension the supervisor swore that he had reviewed both affidavits, 'earlier facts, he details “reassert[ed] and conclusions contained in App. affidavits.” those only 66. allegations probable Those established cause to believe that engaged illegal Giordano was sale and fairly'substantial distribution of on narcotics scale, 18 §2518 U. S. C. (3)(a), they also satisfied the statutory additional criteria for issuance anof They order. showed, for example, that Giordano had made telephone numerous calls listed well- numbers known narcotics violators and prob hence that there was able cause to believe that concerning communications the illegal drug traffic were taking place on Giordano’s telephone line. See 18 (3)(b) §§ U. S. C. (d). The affidavits also established the inadequacy, alterna tive tna.t, investigative means and demonstrated without a wiretap of telephone., Giordano’s agents the narcotics" would be unablq discover his source supply method of . distribution. See 18 U. (3)(c). S. C. §2518 All this was shown basis wholly untainted evi dence incorporated and reaffirmed in sup- the affidavit why Congress indicate would have wanted to make such a dis- tinction, and there is no basis in suppose reason to Congress, if it had a’result, intended such would have failed to leave evidence of that intent. *46 wiretap exten- request for the. the Government’s porting sion order. infor- additional untainted provided also affidavit order. application for extension support
mation to the the of Giordano’s forth, for example, It set circumstances $3,800 agent worth of heroin an sale of undercover wiretap order. day issuance of the following original suspicious in great highly it Moreover, recounted detail keeping observed federal Giordano agents conduct physical allegations under surveillance.8 Like incor- porated by reference from earlier addi- affidavits, tional untainted information was both to the relevant probable requirement constitutional cause and to statutory for various criteria issuance (3). order. U. S. C. 2518 light
In of the substantiality detail of the and. allegations offered in support applica- untainted tion I wiretap for extension order, find no basis majority’s summary rather conclusion the com- munications under intercepted were that extension order derivatively tainted the improper authorization of application for the original wiretap order. Because neither the District Court nor Appeals Court of has considered this I question, would remand case with instructions that the issue settled accord with principles set forth in this opinion. 8 The detailed lawfully through information obtained surveillance aptly undercover work was summarized affidavit ¶ supporting, the extension order: high-level
“Giordano "exhibits the characteristics narcotics travelling, trafficker —extreme continually When he uses caution. counter-surveillance, various techniques. transactions, In his he limits his contacts to a.'small -number App. of trusted individuals.” 81 .