The opinion of the court was delivered by: POLLACK
This case is presently on appeal from the conviction by a jury of 14 defendants of conspiracy to violate the narcotic laws and the conviction of appellant Nedd of carrying a firearm during the course of that conspiracy.
The government presented evidence at the trial of seven brief conversations which were electronically intercepted by an authorized telephone tap of phones located in the headquarters of the narcotics enterprise. The defendants are contending on their appeal that the management of the wiretap violated the standards for interception of oral conversations over a telephone and that the government consequently overheard conversations unrelated to the authorized purposes of the wiretap, albeit not used on the trial.
After hearing argument, the Court of Appeals, 2 Cir., 475 F.2d 832, remanded the case to the District Court for an evidentiary hearing and findings on the issue whether the electronic surveillance was conducted so as to minimize interception of communications not subject to interception under the statute.
Meanwhile, jurisdiction of the matter was retained by the appellate panel.
The required hearings on the inquiry by the Court of Appeals have been duly held in the District Court. The Judge who authorized and supervised the wiretaps (Hon. Anthony J. Travia), the Assistant United States Attorney in charge (Charles B. Updike), a monitoring agent and a narcotics agent who had analyzed the tapped data, as an aid to the Court, were examined and cross-examined. (One of the inspectors in charge, Bitzer, had already been examined and cross-examined on the wiretap at the trial.) The documentary evidence adduced included the wiretap orders, the regular reports to the supervising Judge from the United States Attorney in compliance with the orders, and the logs kept by the monitoring agents.
The reports to Washington as required by statute as well as the inventory and sealing orders and a copy of guidelines issued by the Department of Justice to its attorneys were also introduced. The parties also presented data which really amount to briefs, i.e., such items as the defense analysis of the taps, statistics compiled by the defense, summaries by the defense of selected calls; and contentions of the prosecution, and the analyses made by the prosecution of the evidence.
One fact stands out from the paper weight of all of the foregoing and that is, that the supervising Judge, the government attorney in charge and the agents showed a proper awareness of, sensitivity to and reasonable regard for the right of privacy. They did what under the circumstances was reasonable and understandable in the investigation of this far flung and widely ranging narcotics conspiracy case to ferret out and identify the violators and their part in the crime and the involvement with them of corrupt law enforcement officers. The statutory mandates for the authorization and conduct of wiretaps were legally observed. There was compliance in fact under the circumstances of this case with the statute and the directives from the Judge included in his written orders and verbal instructions to minimize to the extent reasonable the overhearing of unrelated and privileged matter.
A review of the validity of an electronic surveillance must include a determination of the perspective with which the investigating agents proceeded. The legitimacy of a search and seizure is neither established nor negated by a post-investigation analysis of what was produced by the search and seizure. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). The focus, rather, is on the reasonableness of the procedures employed by the investigators, supra. Essential to a constitutionally permissible intrusion into an individual's protected privacy is the presence of facts and circumstances which provide the investigators with probable cause to believe that individual is implicated in a criminal enterprise. Probable cause must exist as of the time of the intrusion, and the results of the investigation -- which naturally informs the hindsight analysis of judges and lawyers -- are not to be considered. With wiretaps, however, the degree of probable cause existing during the course of an investigation may fluctuate, since the growing amalgam of information received during the tap more sharply defines the skeletal data, inferences and sophisticated suspicions with which the investigation began.
Sometime in January 1971, Inspector Thomas P. Taylor of the Bureau of Narcotics and Dangerous Drugs (BNDD) came to Assistant United States Attorney Charles B. Updike who was then in charge of the Narcotic Unit in the office of the United States Attorney for the Southern District, with information suggesting that Elvin Lee Bynum was successfully operating a far flung narcotics trade, buying from and selling to numerous unknown co-conspirators, with the affirmative aid, counsel and protection of local and federal law enforcement officers, agents and their supervisors. Bynum's corruption of law enforcement officers as part of his narcotics empire had apparently reached such proportions that BNDD's internal investigations unit, the Office of Inspection, was galvanized to undertake a broad scale inquiry, involving interviews with numerous witnesses and examination of extensive documentary materials.
Moreover, prior investigations had obtained a taped record tending to implicate certain attorneys as potential co-conspirators in Bynum's venture, and tending to show that they were serving to advise Bynum, and those associated with him, how the conspiracy might best be conducted to serve their joint ends.
Bynum's illicit activities reportedly centered in Brooklyn, New York and ranged outward to Boston, Baltimore, Washington, areas of Virginia and Atlanta.
The criminality believed to be included as adjuncts to the acquisition and distribution of narcotics, allegedly involved numerous murders, robberies ("take-offs" of other drug dealers), thefts, possession of stolen property, the use of lethal weapons, bribery and the obstruction of justice.
Bynum's past record included a federal narcotics offense. He was well schooled in narcotic law enforcement techniques including the use of electronic eavesdropping equipment. Latterly he had served as a government narcotics informer through which he had cultivated the acquaintance of narcotics agents, local law enforcement officials, telephone company employees and others. Conversely, the agents were aware of Bynum and how he operated. He was sophisticated in the field and presented a uniquely difficult and subtle law enforcement problem.
The BNDD requested the procurement of authority to "bug" Bynum's Linden Boulevard, Brooklyn premises together with a simultaneous wiretap installation on what was believed to be the only telephone located there. The tandem eavesdropping was to be able to decode otherwise largely indecipherable telephone conversations far sooner and more effectively than was possible by the clumsy and slower traditional methods of analyzing superficially innocent and coded conversation conducted in an argot and of dissecting these with surveillance and follow-up investigations.
Following these discussions with BNDD inspectors, Updike began to formulate a program for oral and wire surveillance and to plan for obtaining authorization for electronic interception.
Updike's decisions concerning the manner in which the surveillance, if authorized, should be executed were reasonably postulated on his perception of the following additional facts and assumptions:
The premises at 855 Linden Boulevard, where the phones subsequently tapped were located, had been identified by government agents as the nerve center of a massive criminal operation. All contemporaneous indications were that nearly everyone who came and went to those premises was criminally involved in the illicit activities. In furtherance of the operation of the enterprise, its members predictably would endeavor to use a telephone for business (communication). While Mae Garnett was known to live in the premises with Bynum's infant son, her use of the telephone was not thought to deviate to any practical extent from the policy of restricting social usage of the telephone.
Updike reasonably predicted certain problems, prospects, and requirements inherent in electronic surveillance and in equipment used therefor. Such postulates affected the plans he devised for the interceptions. The listening post needed to be located near the target premises due to range limitations of the radios available for communication with visual surveillance teams in the field. Use of pen register devices required time to decode the symbols for the number called, and this would impede the listening endeavor whenever simultaneously attempted.
In monitoring telephone communications the foreseeable problems included at the beginning of any call, speaker or voice identification and simple word identification arising out of dialectical habits; these would require an initial listening of a few minutes to achieve necessary orientation. It was believed that all telephone conversations overheard through the "tap", would be, no matter how illicit the actual message conveyed, innocent superficially. Many illicit telephone communications could be decoded if followed by discussions of the true contents of such calls which would be electronically intercepted. The remainder would prove either decipherable by the agents, with or without informant consultation, or simply forever undecipherable. The character of calls as innocent or as illicit would be similarly determined as best as possible.
In planning for the conduct of the upcoming electronic surveillance, Updike carefully considered, among other things, the statutory minimization provision, 18 U.S.C. § 2518(5). In evaluating the effect of this provision, in addition to talking with his colleagues in the United States Attorney's office, he studied the handbook issued in 1969 by the Department of Justice on their notions at that time for the conduct of electronic surveillance. To the extent that this publication contained instructions, it could be expected that government attorneys would be guided thereby. However, these guidelines were not in any sense "regulations", as the defendants presently assert,
and clearly their directives would have to give way to the instructions and order of the supervising Judge.
Aside from quoting the statutory language, the guidelines on minimization contained in the handbook consist of no more than a discussion of the applicability to public telephones of the minimization requirement. This allusion undoubtedly stemmed from the circumstance that one case which brought on the statute, Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), involved a telephone booth surveillance. That situation is patently distinct from the situation presented herein. The discussion in the guideline reads:
If interception of the subject's telephone calls from a public booth is authorized, the device must be turned off when the subject is not using the booth. Violation of this section [18 U.S.C. § 2518(5)] will subject the agents conducting the interception to civil suit by the parties whose conversations were intercepted when the subject was not present (§ 2520). (MANUAL FOR CONDUCT OF ELECTRONIC SURVEILLANCE UNDER TITLE III OF PUBLIC LAW 90-351, § 10.4, p. 47 (Dept. of Justice, Washington, D.C. 1969)).
Updike concluded even before the orders so stated, that the statutory requirements, including minimization, were applicable to the proposed surveillance and that a reasonable and practical compliance plan was necessary.
Accordingly, Updike adopted the following plan as adequately safeguarding all rights of the persons involved as best as possible in the context of the investigation necessarily defined by the scope of the criminal enterprise: (1) No listening to or recording of privileged communications would be allowable, even though authorized under the Act and the contemplated warrants (See 18 U.S.C. § 2517(4)), and any such calls were to be brought to Updike's attention on a forthwith basis; (2) officers would record all interceptions; (3) the monitoring agents would be free to use their best judgment in deciding if a given call need not be listened to, except on a spot monitoring basis to see that the party and topics remained unchanged; (4) the officers would make a record or log of all conversations and transcribe only those having a high probability of being drug-related; (5) the logs and transcripts so made would be (a) delivered to Updike for his use in determining if there developed any pattern of innocent calls, objectively identifiable as such, and (b) used by the investigating team to isolate, by decoding and otherwise, the evidentiary value of the surveillances; (6) access to the logs, transcripts and the tape recordings would be rigidly controlled on a need-to-know basis so as to minimize the possibility of untoward usage, i.e., "virtually no publication of them of any kind", and (7) comprehensive, full and complete periodic reports would be made to the Court throughout the execution of the warrant to insure the continued actual control of a neutral magistrate.
After consultation with the United States Attorney, Updike gathered the relevant data and sought the required approval from the Attorney General. 18 U.S.C. § 2516.
Upon receipt of the Attorney General's approval, Updike presented the government's application to Circuit Judge Leonard P. Moore. Judge Moore indicated that he would sign the warrants; however, during a discussion of the extent of judicial control necessary to the execution of the warrant, he concluded that his being away part of the contemplated period would impair satisfactory supervision. Thus, he suggested that the Honorable Anthony J. Travia, United States Judge for the Eastern District of New York, where the target house was located, might be preferable for the assignment. Finding that Judge Travia would be available throughout the period, the application was referred to him.
On January 29, 1971, Updike and Inspectors Taylor and Bitzer met with Judge Travia to submit the application. Judge Travia testified at the hearing that he was thoroughly briefed concerning the background of the investigation, the planned surveillance, its purpose and its projected problems. His decision to authorize a wire and an oral interception was based not just on the papers submitted to him, but more fundamentally resulted from his close questioning of the government representatives who came before him. The discussion included a consideration of the likelihood that certain attorneys would probably be surveilled, and Judge Travia made particular efforts to satisfy himself that privileged communications likely would not be intercepted; the suspected role of attorneys in the Bynum operation and the character of anticipated conversations were carefully reviewed. The earlier tape recording mentioned above confirmed the probability that lawyers were co-conspirators in "that there was no instance in which they were giving what could properly be deemed legal advice" to Bynum.
The orders issued by Judge Travia responded to the breadth of the conspiracy under investigation, but were designed to limit the invasion of privacy which necessarily would result from the surveillance authorizations. While making an express provision in the order requiring minimization, he also insisted on the need to minimize the interception of unrelated calls in his supplemental oral instructions; he ordered the agents to use their best judgment and discretion in the endeavor to fulfill the minimization requirement. This grant of discretion subject to his supervision reflected Judge Travia's recognition of the scope of the criminal enterprise involved herein, of the use made of the premises surveilled, and of the experience and reliability of the personnel assigned to this surveillance. Judge Travia specifically concluded that this investigation did not involve an ordinary situation, but rather represented a broad attack on an exceptionally extensive criminal operation.
I find that the oral directives of the Judge and the oral communications to the Judge were appropriate and occurred as recounted in the testimony of the witnesses. Their testimony was credible and corroborated by other testimony, documents, inferences and circumstances. There was nothing incomplete or misleading that was conveyed to the Judge by the inspectors or the Assistant United States Attorney. Such reports are not trust indentures, securities registrations or testaments where repleteness is required and expected; sufficiency and prolix detail are not to be equated as standards for satisfying wiretap obligations.
The January 29 order, which was implemented on January 30 with the installation of the first wiretap herein, authorized oral surveillance of the premises by an electronic listening device ("bug") and the interception of telephone calls made and received over phone 212-342-6203 (hereinafter "phone one"), located at 855 Linden Boulevard in Brooklyn, for a period of 20 days. By order dated February 18, 1971, Judge Travia extended this authorization for wire interception for a further period of fourteen days. The wiretap on this phone was shut down for a period of some 17 hours on February 17-18, between the expiration of the original authorization and the effective implementation of the extension order.
Before the first tap was installed, Bynum learned of the planned surveillance, and he had another telephone installed inside the premises. When the tap on phone one commenced, the agents overheard many calls being referred to a different number. This impeded achievement of the objective of the surveillance and led the government to apply for authorization for a second tap. Judge Travia entered a third order dated February 12, 1971, which authorized the interception of phone conversations over line 212-346-5992 (hereinafter "phone two"), located at the same premises, for 20 days; this order replaced the authorization for the oral surveillance.
The tap on phone two commenced February 13, 1971. The authorization to intercept wire communications on each phone expired March 3, 1971, on which date the taps were ended. The interception on phone one lasted 34 days, and on phone two 20 days.
Each order made by Judge Travia authorized the interception of calls which would reveal the details of the scheme which had been and was being used by Elvin Lee Bynum and others then unknown, to receive, conceal, buy, and sell illegal narcotic drugs, and to engage in the bribery of public officials, and which would reveal the identity of his confederates, their places of operation, and the nature of the conspiracy involved therein.
The terms of these orders, and the circumstances underlying their issuance, appear on this record to be, in all respects, proper and in conformity with 18 U.S.C. §§ 2516 and 2518.
Before considering the operation of the wiretap and the results it achieved in order to find the facts relevant thereto, it is necessary to view the ...