Appeal from an order of the United States District Court for the District of Connecticut, T. Emmet Claire, Judge, suppressing electronic surveillance evidence because the sealing requirement of 18 U.S.C. § 2518(8)(a) was violated. Affirmed.
Oakes, Chief Judge, Lumbard and Feinberg, Circuit Judges.
This is an appeal by the Government from an order of the United States District Court for the District of Connecticut, T. Emmet Clarie, Judge, suppressing certain electronic surveillance evidence under 18 U.S.C. § 2518(8)(a) (Supp. V 1987). Section 2518 regulates the procedure for the interception of electronic communications. It permits surveillance under the authority of an order from a judge. In general, tape recordings of the communications should be made. Then, "[immediately] upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions." 18 U.S.C. § 2518(8)(a). This is no mere technical requirement. Rather, the sealing provision embodied in section 2518(8)(a) was a matter of fundamental concern underlying the electronic surveillance statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 211 (codified as amended at 18 U.S.C. § 2510 et seq.) ("Title III"). Subsection 2518(8)(a) makes the presence of the seal, "or a satisfactory explanation for the absence thereof," a "prerequisite for the use or disclosure of the contents of any wire . . . or electronic communication or evidence derived therefrom." This is an independent suppression remedy, distinct from that contained in section 2518(10)(a). United States v. Mora, 821 F.2d 860, 866 (1st Cir. 1987).
The Supreme Court emphasized the importance of Title III's requirements when it construed section 2518(10)(a)'s suppression provisions in United States v. Giordano, 416 U.S. 505, 527, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974):
[We] think Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.
We believe that these words apply with equal force to the suppression provision in section 2518(8)(a). Furthermore, the technological advances that have occurred in the fifteen years since the Giordano decision, see G. Marx, Undercover: Police Surveillance in America 206-33 (1988) ("Undercover"), render the Court's views in that case all the more pertinent.
For reasons that will appear below, we affirm the decision of the district court insofar as it suppressed 344 tapes of surveillance on telephones at Levittown, Puerto Rico (the "Levittown tapes") and thirty-four tapes from electronic surveillance at certain telephones in Vega Baja, Puerto Rico ("the Vega Baja tapes").
Following a rocket attack on the federal building and United States courthouse in Hato Rey, Puerto Rico, the Government obtained an order of electronic surveillance effective April 27, 1984, for the residence of defendant Filiberto Ojeda Rios ("Ojeda") in Levittown, Puerto Rico, and for a bank of public telephones near his residence. At some time during the surveillance, the Government had reason to believe that those connected with that attack were also involved in the robbery of the Wells Fargo depot in West Hartford, Connecticut. That robbery is the subject of an indictment, and we consider here the district court's suppression of tapes that the Government has designated as trial exhibits.*fn1
The Government obtained two extensions of the April 27, 1984, order covering Ojeda's residence and the nearby public telephones in Levittown. The final extension expired on July 23, 1984, but the Government actually terminated the surveillance on July 9, 1984, a few days after Ojeda moved out of the apartment and ninety-six days before the tapes were judicially sealed on October 13, 1984. The date of sealing of the Levittown tapes was eighty-two days after the expiration of the final extension order.
Meanwhile, however, the Government had obtained a new surveillance order on July 27, 1984, relating to Ojeda's new residence in El Cortijo, an urban community within a municipality adjacent to Levittown. That order, which will be called the El Cortijo order, expired on September 24, 1984. Between the time of the expiration of the Levittown order and its extensions and the issuance of the El Cortijo order, there was a lapse of only four days. Between the time of the expiration of the El Cortijo order and its extensions on September 24, 1984, and the order of sealing on October 11, 1984, there was a lapse of seventeen days. The district court held, however, that the Levittown electronic surveillance was not extended by the El Cortijo electronic surveillance order and that accordingly the court did not have to determine whether the duty to seal the Levittown tapes arose on July 9, 1984, the date that the Government ceased Operating its equipment at Levittown, or on July 23, 1984, the date of expiration of the last Levittown extension order. In either case, the court ruled, the tapes were suppressed "on the basis of time alone." The court ruled, on the other hand, that the seventeen-day sealing delay applicable to the El Cortijo tapes themselves was satisfactorily explained because the tapes were immaculate, the delay came about in good faith, and the delay was not excessive. Thus our first question is whether the El Cortijo surveillance was in fact a continuance of the Levittown surveillance. We then must determine, if it was not, whether the surveillance evidence was suppressible on the facts of this case where there was a sealing delay in connection with the Levittown tapes of either eighty-two or ninety-six days, as the case may be.
The Vega Baja tapes relate to orders of authorization to wiretap two public telephones outside a pharmacy in Vega Baja. The first order was obtained on January 18, 1985, and expired on February 17, 1985. The Government obtained a new wiretap order, based on a revised affidavit, on March 1, 1985. This order was extended twice, the final extension expiring on May 30, 1985. All the tapes derived from the Vega Baja telephone taps were then sealed on June 15, 1985. The Government claimed before the district court that the order of March 1, 1985, was an extension of the January 18, 1985, order, but the court was not satisfied with the Government's explanation, holding that the revised affidavit ought to have been completed "in a more expeditous [sic] manner." This led the court to conclude that the sealing delay for the Vega Beja tapes derived from the January 18, 1985, order was 118 days. It considered this delay excessive and suppressed these tapes "on the basis of time alone." The sealing delay for all of the other Vega Beja telephone tapes was sixteen days. The district court found that this sixteen-day delay was satisfactorily explained, again on the basis of the immaculacy of the tapes and the fact that the delay came about in good faith and was not excessive. Thus, with respect to the tapes created during the first Vega Baja telephone order of January 18, 1985, the first question is whether the March 1, 1985, order was an extension of the prior order. If it was not, then we must decide whether the 118-day sealing delay was satisfactorily explained on the facts of this case.
It should be noted that the district court specifically stated in footnote 3 of its ruling that it made no specific findings with respect to the physical integrity of either the Levittown tapes or the Vega Baja tapes. In a motion for clarification and reconsideration, the Government contended that this was inconsistent with the substance of the court's rulings. The district court denied the motion to reconsider footnote 3. The appellees make the point that even if we were to reverse the district court's orders of suppression and to remand for further findings, serious questions of authenticity and integrity would remain for determination and independent grounds for suppression would be at issue on appeal. These include the ...