United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974)

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 entitled “Wiretapping and Electronic Surveillance” is found at 82 Stat. 211. In § 801 of that Act, Congress set forth its findings supporting the legislation; § 802 enacts a new Chapter 119 of the Criminal Code entitled “Wire Interception and Interception of Oral Communications.” See 18 U.S.C. §§ 2510-2520. Section 803 amended § 605 of the Communications Act of 1934, 47 U.S.C. § 605, to remove the complete prohibition against interception of telephonic communications without the consent of either party. Section 804 established a National, Commission for the review of federal and state laws relating to wiretapping and electronic surveillance.

On May 4, 1970, telephone intercepts and pen registers were installed on two telephones in Chicago for which John Haygood, 'a co-indictee, was the subscriber. Three conversations between Haygood and appellant, who lived in Detroit, were overheard and introduced at trial; the jury may have inferred that they involved negotiations for the sale of heroin. The government also introduced evidence, apparently obtained at least in part in consequence of the wiretap, of surveillance of a journey made by Ann *526Ilaygood (John Ilaygood’s wife) fnwn Chicago to Ramsey’s Detroit residence, and back to Chicago, which the jury might reasonably have concluded was made for the purpose of securing a quantity of heroin, which Ilay-good later resold.

The charge was brought under 21 U.S.C. § 174, repealed Act of Oct. 27, 1970, Pub.L. No.91-513, Title III, § 1101(a)(2), 84 Stat. 1291.

Appellant also advanced a contention which is now foreclosed by the Supreme Court decision in United States v. Chavez, 410 U.S. 562, 570-575, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Appellant suggested that the authorization for the instant eavesdropping might have been obtained illegally because of the alleged forgery of the signature of Assistant Attorney General Will Wilson on the application for the intercept order and requested a remand for an evidentiary hearing on the issue. Since the record contains an affidavit of former Attorney General John Mitchell stating that he personally initialed a memorandum approving the instant wiretap, the statuory requirements were satisfied. Cf. United States v. Roberts, 477 F.2d 57, 59 (7th Cir. 1973).

Appellant also suggests that the very existence of wiretapping authority has a chilling effect on free speech and, therefore, the statute violates the First Amendment. See Lopez v. United States, 373 U.S. 427, 450, 83 S.Ct. 1381, 10 L.Ed.2d 462 (Brennan, J., dissenting). If this argument were valid, no statutory authorization of electronic eavesdropping would be constitutional. Plainly that result would be inconsistent with the Supreme Court’s analysis in Katz v. United States, 389 U.S. 347, see especially pages 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576.

See United States v. Cafero, 473 F.2d 489, 495-497, 498-500 (3rd Cir. 1973); United States v. Tortorello, 480 F.2d 764, 773-774 (2d Cir. 1973). Although the primary claims in the two Cox cases were somewhat different, it is fair to say that the Eighth and Tenth Circuits have also implicitly rejected these arguments. See United States v. Cox, 449 F.2d 679, 685, 687 (10th Cir. 1971); United States v. Cox, 462 F.2d 1293, 1303-1304 (8th Cir. 1972).

The rationale of Katz v. United States, supra, n. 5, establishes that a wiretap is not prohibited by the Constitution merely because there was no specific statutory authority for its issuance. Appellant does not contest that, in this case, there was compliance with the requirements of the Fourth Amendment. The application for the order authorizing the wiretap — the constitutional equivalent of an application for a search warrant — demonstrated the existence of adequate probable cause; the order itself satisfied the particularity requirements of the Fourth Amendment; and the relevant inter-ce) >ted conversations were among those specifically authorized to be overheard. Appellant does not argue to the contrary. There was no invasion of appellant’s right “to be secure . . . against unreasonable searches and seizures. . . .”

The Second Circuit considered the standing issue in United States v. Tortorello, supra, n. 6. Its resolution of the issue was predicated on the fact that § 605 of the Federal Communications Act of 1934 (47 U.S.C. § 605) had been amended by § 803 of Title III. Prior to that amendment, the wiretap before them would have been unlawful and the evidence obtained thereby inadmissible. See Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126. Since the evidence which led to appellant’s conviction was rendered admissible by § 803 of Title III, the Court held that he had standing to at*527tack tlie constitutionality of the entire Title on its face. See 480 F.2d at 772. We cannot accept this reasoning. Title XI of the Crime Control Act consists in its entirety of a separability provision, which expresses Congress’ intent to save the Act from a determination of total invalidity. While there is authority for the view that such a provision cannot be completely dis-positive, see Carter v. Carter Coal Co., 298 U.S. 238, 312-313, 56 S.Ct. 855, 80 L.Ed. 1160, ,to grant standing upon the Second Circuit’s rationale, it would be necessary to hold that the separability provision does not apply to the various parts of Title III. We believe such a holding would be unwarranted. The amendment to the Federal Communications Act is contained in a separate section which does not constitute a part of the newly enacted Chapter 119 of the Criminal Code; that chapter contains the provisions challenged by appellant as unconstitutional. More fundamentally, even though the amendment to the Federal Communications Act was adopted as a part of a comprehensive piece of legislation substituting a lesser prohibition against wiretapping for the previous total prohibition, invalidation of Chapter 119 would not require that the amendment also be stricken down. For surely there is nothing in the Constitution that would prevent Congress from repealing every statutory prohibition against electronic eavesdropping and leaving only the Constitution itself as a safeguard against its abuse.

The classic statement of the requirements imposed by the judiciary on itself before it will undertake the weighty function of constitutional adjudication is probably Mr. Justice Brandéis’ concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688. The fifth criterion enunciated therein is that “The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.” Id. at 347, 56 S.Ct. at 483. This principle ordinarily applies in Fourth Amendment cases. For although the enforcement of the exclusionary rule testifies to the importance of vindicating rights j)ro-tected by the Fourth Amendment, it is generally accepted that only a person whose own interest in privacy or property has been invaded may invoke the benefit of that rule. Cf. Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176.

The Court described traditional doctrine as follows:

“To be sure there are statutes that by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes.” Smith v. Gogren, 415 U.S. 566, 577, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). Since the Court prefaces the quoted language by defining a “hard core violator” as one “to whom the statute was not vague, whatever its implications for those engaged *528in different conduct,” we infer that the Court might require a litigant objecting to the invalidity of a statute on account of vagueness to allege that the statute was vague as to his conduct.

“The issue before us, as Mr. Justice White says, is ‘whether this search complied with Fourth Amendment standards.’ For me that issue is an extremely close one in the circumstances of this case. It certainly cannot be resolved by incantation of ritual phrases like ‘general warrant.’ Its resolution involves ‘the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not?’ ” 388 U.S. at 68-69, 87 S.Ct. at 1888 (concurring opinion).

“I agree with my Brother White that instead of looking for technical defects in the language of the New York statute, the Court should examine the actual circumstances of its application in this case to determine whether petitioner’s rights have here been violated. That to me seems to be the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not? . . . Certainly a search and seizure may comply with the Fourth Amendment even in the absence of an authorizing statute which embodies the Amendment’s requirements. Osborn v. United States, 385 U.S. 323 [87 S.Ct. 429, 17 L.Ed.2d 394], upon which the Court so heavily relies, is a good example of a case where the Court sustained the tape recording of a conversation by examining the particular circumstances surrounding it, even though no federal statute prescribed the precautions taken by the district judges there.” 388 U.S. at 82-83, 87 S.Ct. at 1895 (dissenting opinion).

“The Court declares, without further explanation, that since petitioner , was ‘affected’ by § 813-a, he may challenge its validity on its face. Nothing in the cases of this Court supports this wholly ambiguous standard; the Court until now has, in recognition of the intense difficulties so wide a rule might create for the orderly adjudication of constitutional issues, limited the situations in which state statutes may be challenged on their face. There is no reason here, apart from the momentary conveniences of this case, to abandon those limitations: none of the circumstances which have before properly been thought to warrant challenges of statutes on their face is present, cf. Thornhill v. Alabama, 310 U.S. 88, 98 [60 S.Ct. 736, 742, 84 L.Ed. 1093], and no justification for additional exceptions has been offered. See generally United States v. National Dairy Products Corp., 372 U.S. 29, 36 [83 S.Ct. 594, 599, 9 L.Ed.2d 561]; Aptheker v. Secretary of State, 378 U.S. 500, 521 [84 S.Ct. 1659, 1671, 12 L.Ed.2d 992] (dissenting opinion). Petitioner’s rights, and those of others similarly situated, can be fully vindicated through the adjudication of the consistency with the Fourteenth Amendment of each eavesdropping order.” 388 U.S. at 90-91, 87 S.Ct. at 1899 (dissenting opinion).

“This case boils down, therefore, to the question of whether § 813-a was constitutionally applied in this case.” 388 U.S. at 108, 87 S.Ct. 1909. “The question here is whether this search complied with Fourth Amendment standards.” Id. at 111, 87 S.Ct. 1911 (dissenting opinion).

One commentator suggested the following rationale:

In Berger, unlike the present case, the petitioner advanced a strong claim of unconstitutional application as to himself. Indeed, the unconstitutionality of the wiretap at issue was the basis for Mr. Justice Stewart’s concurrence in the result. The application of the New York statute in that case had permitted a recording device to be installed in an attorney’s office for a period of 60 days. In the face of such a strong claim of impermissible application — one that either constituted the use of a general warrant forbidden by the Fourth Amendment, as the majority held, or at the very least closely approached the outer limits of the range in which a statute authorizing electronic eavesdropping might be applied constitutionally— the Court could with more legitimacy express an opinion on the validity of the entire statutory scheme before it than if the particular litigant before it had no arguable basis for claiming that his own constitutional rights had been impaired but was merely positing quite different hypothetical situations in which abuses might conceivably occur.

The reasons why hypothetical adjudication of constitutional issues is undesirable are applicable to a “facial” analysis of this statute. For, in order to meet appellant’s principal argument that authorization of electronic. eavesdropping for a continuous period of 30 days is comparable to a general warrant and not constitutionally distinguishable from the 60-day authorization condemned in Berger, see United States v. Whitaker, 343 F.Supp. 358, 365-366 (E.D.Pa.1972), rev’d, 474 F.2d 1246 (3rd Cir. 1973), we would be forced either (a) to decide whether validity must rest on the difference between 60 days and 30 days, (b) attempt to evaluate the efficacy of the provisions for “automatic” termination of authorizations under a variety of conceivable circumstances, or (c) attempt to predict the frequency with which judges may impose a time limit less than the maximum of 30 days permitted on the basis of a single showing of .probable cause.

The Supreme Court in Berger did not explicitly rely upon the strength of petitioner’s own Fourth Amendment claim in permitting challenge to the Xew York statute on its face.

Ordinarily, cases in which facial constitutional adjudication has been considered appropriate have involved criminal statutes, or at least disciplinary sanctions. In such cases, the consequence of a judicial determination of facial unconstitutionality is unambiguous. Similarly, if Congress had no power to authorize the practices described in the legislation, a ruling that the statute is facially invalid would be understandable. See, ,e. g., Schechter Poultry Corp. v. United States, 295 U.S. 495, 550, 55 S.Ct. 837, 79 L.Ed. 1570. But the analysis in Katz makes it clear that this is not such a case. It is therefore difficult to know precisely what a declaration that this statute is facially unconstitutional would mean.

We believe the crux of Judge Lord’s opinion is found in the following passage: “If a judge exercised certain discretionary powers which the Act gives him, the order may not violate the Fourth Amendment. The difficulty, though, is precisely that those powers are discretionary and not mandated. It follows that the Act does not command a constitutional order; it permits an uneonstltu-tional one.” United States v. Whitaker, supra n. 18, 343 F.Supp. at 363.

The majority in Berger did not specifically announce the standard that they employed. The explanation may lie in the fact that the opinion, when announced, was subject to the interpretation that the Court intended to forbid all wiretapping of telephones. In his dissent in Katz v. United States the following Term, Mr. Justice Black observed: 389 U.S. at 364, 88 S.Ct. at 518. See also Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 S.Ct.Rev. 133, 143: “In Katz itself the Court proceeded to make clear that, contrary to the implications *531of its decision in Berger v. New York, electronic surveillance under limited conditions could be authorized by a warrant.” (Footnotes omitted.) That such an interpretation of the opinion was reasonable is bolstered by the fact the petitioner specifically argued such a contention to the Supreme Court. Point I of his Brief was : Brief for Petitioner at 15.

Perhaps the lynchpin of the majority’s analysis in Berger appears in the paragraph in 388 U.S. at 58-60, 87 S.Ct. 1873. We note that the procedural laxity therein condemned has been avoided in Title III.

The mere fact that the statute does not require notice to be given to everyone whose conversations have been overheard does not render it unconstitutional. Unlike the New York statute condemned in Berger, see 388 U.S. at 60, 87 S.Ct. 1873, § 2518(8) (d) requires that those individuals named in the order be given notice within 90 days after its termination. This is consistent with ordinary Fourth Amendment practice under which notice is given to those whose premises are searched. See Rule 41(d), Fed.R.Crim.P.

We quote the entire text of § 2518(5), supplying emphasis to the portion relevant to appellant’s claim:

In United States v. Kahn, 415 U.S. 143, 154, 94 S.Ct. 977, 983, 39 L.Ed.2d 225 (1974), the Court described this requirement as a duty “to execute the warrant in such a manner as to minimize the interception of any innocent conversations.” (Emphasis added.) Without the guidance we might have had some uncertainty as to the meaning of the words “communications not otherwise subject to interception” because they might have been interpreted literally to encompass noninnocent conversations as well, inasmuch as even a noninnocent conversation would not be subject to interception other than pursuant to a valid order. Such a literal reading, however, would not effectuate any identifiable legislative objective. We assume, therefore, that the agents were obligated to intercept as few “innocent conversations” as possible consistent with their primary mission of obtaining evidence of the criminal activity described in the warrant. When their mission is kept in mind, the term “innocent” may perhaps be further limited to those which are not relevant in the sense that they are not likely to lead to the discovery of any searched-for evidence. The nature of the duty to minimize may vary from case to case and, therefore, conceivably in some intercept orders the trial judge should do more than merely parrot the language of a somewhat ambiguous statutory provision.

Since the right Congress sought to protect is a right to privacy, this analysis is not inconsistent with Mr. Justice Harlan’s dissenting opinion in Berger, 388 U.S. at 101-104, 87 S.Ct. 1873.

The witness Harden anticipated leniency but received no grant of immunity.