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UNITED STATES v. FORLANO

March 7, 1973

UNITED STATES of America
v.
Nicholas FORLANO et al., Defendants


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

Opinion On Motions To Dismiss Indictment And To Suppress Evidence

MOTLEY, District Judge.

 Defendants Nicholas Forlano, Charles Rubin Stein and Ruby Lazarus, were indicted with three others on July 14, 1970 and charged in five counts with interstate transmission of wagering information (18 U.S.C. § 1084); interstate travel in aid of racketeering (18 U.S.C. § 1952); and conspiracy (18 U.S.C. § 371). (Indictment No. 70 Cr. 559.)

 Forlano, Stein and Lazarus have moved to suppress certain wire interceptions and to dismiss the indictment which was based in part on the wiretap evidence. They claim that the interceptions were unlawful on the grounds that the statutes which the Government contends authorized the wiretaps, Title III of the Omnibus Crime Control and Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and the New York Code of Criminal Procedure, §§ 814-824, are unconstitutional and that the eavesdropping was not conducted in conformity with the statutes. The motions are denied for the reasons stated below.

 On July 17, 1969, Judge Lane of the New York State Supreme Court, New York County, authorized a wire interception pursuant to New York Code of Criminal Procedure, §§ 814-824, of telephones bearing the numbers 355-8857, 355-9307, 688-8070, 688-8071, 838-9665 and 754-9578. The order was based on affidavits of Alfred J. Scotti, Acting District Attorney, New York County, and Lawrence S. Goldman, assistant district attorney, New York County, alleging that the crimes of criminal usury and conspiracy to commit criminal usury were being committed or about to be committed by Stein, Forlano and Perry Alpirn on telephones bearing the above indicated numbers.

 On July 30, 1969, Judge Lane amended the eavesdropping warrant to include another individual, Virgil Alessi, based on affidavits of Frank Hogan, district attorney, New York County, and Lawrence S. Goldman, assistant district attorney, New York County. Another amendment was approved by Judge Schweitzer on August 13, 1969, based on affidavits of Mr. Hogan and Joseph Phillips, assistant district attorney, to include another individual, Murray Zucker. Two additional violations of state statutes, promotion of gambling and conspiracy to promote gambling, were alleged.

 Judge Schweitzer authorized a renewal of the wire interceptions for a period of 30 days based on affidavits of Mr. Hogan and Lawrence Hockheiser, an assistant district attorney. An additional 30 day renewal was authorized by Judge Schweitzer on September 19, 1969 based on affidavits of Mr. Hogan and Mr. Goldman. An additional individual, defendant Charles Karp, was named.

 Prior to the expiration period of the latest renewal, interceptions were discontinued as to communications to and from all the above-indicated telephones except those bearing the numbers 355-8857 and 355-9307. On October 17, 1969, Judge Schweitzer authorized another 30 day renewal of wire interceptions of communications to and from the telephones bearing the numbers 355-8857 and 355-9307 based on affidavits of Mr. Scotti and Mr. Goldman.

 State law enforcement officials turned over some of the eavesdropping information to federal law enforcement officials.

 I. Title III provides in part:

 
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers. . . . 18 U.S.C. § 2516(2).

 A state prosecuting attorney, in short, can obtain authorization for electronic eavesdropping from a state court if he complies with the requirements of the applicable state statute as well as those of Title III. It would follow that if Title III adequately protects a defendant's Fourth Amendment privacy interests, it is unnecessary for the court to consider the constitutionality of the state statute which, at any rate, is very similar to the federal statute.

 The court holds that Title III is constitutional for the reasons set forth in United States v. Cox, 462 F.2d 1293, (8th Cir. 1972) and United States v. Escandar, 319 F. Supp. 295, 297-302 (S.D. Fla. 1970). See also United States v. Becker, 334 F. Supp. 546, (S.D.N.Y. 1971) (Weinfeld, J.).

 In addition to the reasons indicated in Cox, supra, and Escandar, supra, the court notes that the statute satisfies the requirement announced in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), that it provide for notice or, in the alternative, ". . . some showing of special facts." Id. at 60, 87 S. Ct. 1873. Of course, eavesdropping, more than the ordinary search, depends for its success upon secrecy. See id. Therefore, it seems clear that the statute can constitutionally permit eavesdropping to be authorized without requiring notice before the eavesdropping is completed so long as the statute requires a finding of exigent circumstances before the eavesdropping is authorized. Title III does require such a showing. See 18 U.S.C. § 2518(3)(c). In addition, the statute requires that notice of the fact that wire or oral communications ...


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