§ 626.06

Minnesota Statutes

Source: 2025 Minnesota Statutes. For the official text, see revisor.mn.gov.

Citing Cases (3)

Minnesota Supreme Court

Emerson v. Board of Independent School District 199 · 2012 1 citation [Dissent]

+ 1 more citation in this opinion.

State v. Quinn · 1989 2 citations

436 N.W.2d 758 (1989) STATE of Minnesota, Petitioner, Appellant, v. Mara Therese QUINN, et al., Respondents. No. C7-88-14. Supreme Court of Minnesota. January 31, 1989. Rehearing Denied March 6, 1989. Thomas L. Johnson, Vernon E. Bergstrom, Toni A. Beitz, Hennepin County Atty., Minneapolis, for appellant. Michael McGlennen, A. Demetruis Clemons, Craig Cascarano, M.G. Singer, Minneapolis, for respondents. Heard, considered and decided by the court en banc. KELLEY, Justice. As the result of a court order authorizing a wiretap, police intercepted conversations and later seized certain evidence implicating respondents in various types of criminal activity. The respondents moved to suppress the evidence contending that the warrant authorizing the wiretap on its face was fatally defective for failure to include a statutory phrase that the warrant "must terminate upon attainment of the authorized objective." Minn. Stat. § 626A.06, subd. 4(h). By a split decision, a court of appeals panel affirmed a trial court order suppressing the evidence for that failure to comply literally with the statute. State v. Quinn, 422 N.W.2d 763 (Minn.App.1988). We granted the state's petition for further review. We conclude that the constitutional safeguard to the citizens' privacy rights was fully protected by substantial compliance with the statute's mandate. Therefore, we reverse. The Minneapolis Police Department in the spring of 1985 commenced an investigation *759 of a suspected shoplifting ring and fencing operation. An informant had provided police with information that a widespread "boost and return" fencing operation was being operated by Mara Quinn and Jerald Saliterman. During the course of a search of the Quinn residence made pursuant to a duly issued search warrant, officers observed empty clothes racks and other items and paraphernalia useful to and often employed in that type of a criminal enterprise. Police likewise questioned persons who admitted to having purchased merchandise at the Quinn residence for less than the normal retail price. Neighbors complained of the heavy traffic in and out of the Quinn residence. During the course of continuing surveillance operations later that fall, officers observed a number of people coming from the Quinn residence carrying what appeared to be bags full of merchandise. They also noted that although neither Quinn nor Saliterman appeared to be employed, they frequently brought bags of merchandise into the residence. Intermittently during the surveillance period several sources had provided the officers with information indicating that the suspected criminal activity was ongoing. Those informants also apprised the police that Saliterman and Quinn had associates working at stores, especially Dayton's, who assisted them in stealing. Police learned that customers "placed" orders with Quinn and Saliterman for stolen merchandise by telephone. As the result of a pen register on the telephone at the Quinn residence, police learned that large numbers of telephone calls were made to and from the residence. Saliterman had a criminal record. A number of the calls placed from the residence were to other convicted felons. A police initiated undercover operation proved to be unsuccessful when the targets recognized the undercover officer, but a police informant was able to purchase from Quinn property which was believed by authorities to have been stolen from Dayton's. A well planned and successful burglary of Cedrics, an Edina retail store, occurred on October 6, 1985. Fifty-four fur coats valued at $354,770 were stolen. Eye witness evidence from a juvenile at the scene implicated Saliterman as well as three other persons, whom the pen register had identified as recipients of phone calls placed from the Quinn residence. The police investigation of the suspected Quinn-Saliterman enterprise continued over a number of months. Some of the information furnished police by informants had been confirmed to the extent that the police had probable cause to believe that Quinn and Saliterman, and, perhaps others, were involved in a somewhat sophisticated, extensive, and high dollar volume criminal operation. However, those tips and follow-up investigative efforts had failed to produce sufficient evidence to convict either person, or any other person, of any crime which would be commensurate with the extent of their involvement in a scheme of this magnitude. Separate from, and initially unrelated to, the on-going Minneapolis police investigation, Hennepin County deputy sheriff Walt Power independently learned from an informant that Norman Mastrian was selling stolen fur coats. Power arranged through the informant to be introduced to Mastrian in an undercover capacity. Pretending to be interested in purchasing fur coats Power engaged in purchase negotiations during which Mastrian admitted the coats he was selling were those stolen in the Cedrics burglary. Eventually the negotiations led to the purchase by Power of two of the coats in January 1986.[1] During those negotiations, Mastrian had informed Power that he had access to 30 other coats, while nonetheless always insisting he was acting only as a middleman. A pen register placed on the phone at Mastrian's residence, *760 as well as the pen register on the Quinn telephone, confirmed a connection between Mastrian and Quinn-Saliterman by a number of telephone communications passing back and forth between the two residences. The failure of normal traditional investigative techniques to produce sufficient evidence to convict the members of the gang of crimes, which the police by now were certain were being committed by persons involved in an operation run from the house at 1012 Thomas Avenue South, Minneapolis, the customary residence of suspects Mara Quinn, Gerald Saliterman, Edward Quinn and Greg Scholl, prompted the police, by necessity, to seek authority to place a wiretap on the house's telephone. An assistant Hennepin County attorney, with their aid, drafted the application, supporting affidavits, and a proposed warrant to be signed by a magistrate authorizing the wiretap. Those documents were then reviewed by the assistant county attorney's immediate superior, and later by the county attorney himself before they were presented to District Judge Patrick Fitzgerald on February 10, 1986. Judge Fitzgerald, after reviewing the documents, signed the warrant authorizing a wiretap surveillance. The warrant provided that its authority would automatically terminate either in ten days or when a suspect was charged. As provided by Minn. Stat. § 626A.06, subd. 4(e) (1986), the warrant further provided that the authorization should not "automatically terminate when the described communication has been first obtained." The warrant did contain the minimization clause required by Minn. Stat. § 626A.06, subd. 4(h). The warrant did not state that the wiretap authorization would terminate upon attainment of the authorized objective. See Minn. Stat. § 626A.06, subds. 4(h), 5. This omission was the result neither of an intentional act nor secretarial error in the county attorney's office. Officers conducting the wiretap had been trained in, and followed, procedures to minimize interception of conversations overheard. The conversations actually monitored were between persons who appeared to be purchasers of stolen goods, those involved in the "boost and return" operation, store personnel seemingly involved with the scheme, and with individuals who appeared to be involved with shoplifting. Of 565 telephone calls monitored, 231, or 41 percent related to criminal activity connected with the scheme. Simultaneously with the wiretap, Deputy Sheriff Power's undercover negotiations with Norman Mastrian continued. Those negotiations ultimately resulted in an agreement by Mastrian to exchange 14 additional stolen coats for cocaine. Wiretap interceptions on the Quinn-Saliterman telephone also revealed that the person forming the connecting link between them and Mastrian was Terry Martin. On February 18, 1986, when Mastrian and Martin attempted to deliver 14 fur coats to Power, they were immediately arrested.[2] Though neither mandated by law nor the warrant itself, the assistant county attorney prepared and furnished a report, based upon logs of monitored conversations emanating to and from the Quinn-Saliterman residence. By statute and the warrant's specific terms, the wiretap authority ended at 11:42 a.m. on February 20. Approximately 20 minutes later a complaint charging Mastrian and Martin with possession of 14 stolen fur coats was filed.[3] The investigation into the activities of the ring continued beyond the termination of the wiretap. As a result of the interceptions, stolen property was recovered, identified and inventoried and police were able to locate and interview witnesses including owners of some of the stolen property.[4]*761 On May 15, 1987 complaints alleging a number of counts of receiving stolen property were filed against Quinn, Saliterman and five others. Because the discovered activities of Quinn and Saliterman may have likewise violated federal criminal statutes, Minneapolis and Hennepin County law enforcement agencies relayed the information uncovered during the investigation to local federal authorities. In May and August 1987, federal grand jury indictments were returned and filed charging Quinn, Saliterman, and others with various federal criminal offenses. Pre-trial motions to suppress the evidence from the wiretap were made in both the federal and the state court.[5] The hearing on the suppression motion pending in state court was deferred pending the outcome of the hearing on the identical motion in federal court. United States Magistrate Janice Symchych initially heard the motion. She recommended to the United States District Court that all four challenges to the warrant be denied. Specifically she recommended denial of the challenge to the wiretap warrant notwithstanding that it omitted the statutorily mandated phrase that the warrant "* * * must terminate upon attainment of the authorized objective * * * Minn. Stat. § 626A.06, subd. 4(h) (1986)." In doing so, she stated: "The absence of the authorized objectives language is not fatal here. Because the order clearly called for termination within 10 days, or earlier, if one of the named parties is charged, it is more narrowly confined in particular than in each of the warrants upheld in the foregoing cases." United States v. Saliterman, CR 6-87-101, slip. op. at 19-20 (D.Minn., Nov. 23, 1987). United States District Judge Devitt adopted that recommendation. Because the warrant substantially complied with federal statutes, Judge Devitt held the omission of the statutory provision from the body of the warrant did not render the warrant facially defective. United States v. Saliterman, CR 6-87-101, slip. op. at 2 (D.Minn., Dec. 7, 1987). The identical suppression issues were later presented to Hennepin County District Judge Charles Porter. He adopted the transcript of the federal hearing as the record of the facts of the case, and, as well, adopted Magistrate Symchych's recommendation with one exception. Judge Porter held that under Minnesota Statutes, and cases interpreting them, the failure to include the termination provision mandating cessation of the tap upon attainment of the authorized objective in the warrant itself rendered the wiretap warrant facially invalid, and, consequently, that the conversations intercepted and derivative evidence seized as the result of the wiretap must be suppressed. His ruling, affirmed by a split court of appeals panel, resulted from a strict and literal application of the statutory language.[6] To resolve the issue raised by this appeal, we must interpret portions of Minnesota Statute, chapter 626A, the Privacy of Communications Act. Specifically, we must focus on four statutory provisions: (1) Minn. Stat. § 626A.06, subd. 5, circumscribing the duration of a wiretap intercept; (2) Minn. Stat. § 626A.06, subd. 1(d) which authorizes an applicant, upon making an appropriate showing, to intercept multiple conversations; and (3)-(4) Minn. Stat. § 626A.06, subd. 4(e) and (h) which specify information to be included in the warrant. Those four statutory provisions are representative of attempts initially *762 made by the Congress and later by the several state legislatures to codify the holdings of three United States Supreme Court cases which, while holding that under certain circumstances police wiretap interceptions would not violate the United States Constitution's Fourth Amendment proscription barring unreasonable searches and seizures, nevertheless established standards designed to minimize intrusions upon the citizens' privacy rights. In Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966) the United States Supreme Court denied a challenge on Fourth Amendment grounds to a warrant authorizing a concealed tape recording of a conversation between the accused and an informant. After noting that the officers had prepared and submitted a report to two federal judges who approved the procedure, the court stated: "There could hardly be a clearer example of the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment as a precondition of lawful electronic surveillance." Id. at 330, 87 S.Ct. at 433. The same court, in the subsequent case of Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), invalidated on Fourth Amendment grounds a New York statute which (1) permitted a tap without any prior showing of probable cause that any offense had been or was being conducted; (2) authorized the tap to continue for as long as two months upon a simple showing of probable cause, with an additional two months extension if, in the public interest, and (3) failed to provide for automatic termination once the conversation sought had been seized. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) the court held an intercept of a conversation by this type of eavesdropping violated the Fourth Amendment prohibition on unreasonable searches, unless an impartial judicial officer has first determined the need for the interception and then structured the procedure to be employed to insure a narrow intrusion into privacy no broader than necessary for the police to attain their legitimate objective. The Congress reacted to this triad of cases in 1968 when, as part of the Crime Control and Safe Street Act, 18 U.S.C. §§ 2510-20 (1982), it codified the holdings of those cases. One provision of the act requires that a wiretap "* * * must terminate upon attainment of the authorized objective * * *" 18 U.S.C.A. § 2518(5) (Supp. 1988).[7] Thereafter, several states followed suit by enacting legislation patterned after the federal act. Minnesota passed an act authorizing wiretaps which has been codified and now forms part of the Privacy of Communication Act, Minn. Stat. §§ 626A.01-.23 (1986). The Minnesota act contains a termination provision identical to that appearing in the federal statute.[8] As does the wording of the federal statute, the literal wording of the Minnesota statute requires that the warrant itself provide for automatic *763 termination upon attainment of the achieved objective. Notwithstanding the literal wording, the state urges us to follow the lead employed by federal courts, as well as a number of state jurisdictions, in determining whether wiretap warrants meet the requirements of the Fourth Amendment. Federal courts have generally upheld the validity of a wiretap interception provided: (1) that the warrant has substantially, if not literally, complied with the applicable statute, (2) that the statute's underlying purpose to minimize the extent of the governmental intrusion has not been frustrated by the omission, (3) that the omission involved a noncrucial statutory requirement, and (4) that the accused was not prejudiced. That approach appears to be merely an extension of the approach federal courts have traditionally used in testing application affidavits and traditional search warrants to see if they measure up to constitutional Fourth Amendment requirements; that is, to test such documents in a "common sense and realistic fashion" and not in a hyper-technical manner. See, e.g. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Thus, in United States v. Tortorello, 480 F.2d 764 (2nd Cir.) cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973) the issue involved both the validity of New York's wiretap statute as well as whether the intercept warrant was itself constitutionally defective. After holding that New York's law, which, as does the Minnesota statute, virtually tracks the language of Title III of the omnibus Crime, Control and Safe Streets Act of 1968, to be constitutional, the court addressed the defendant's challenge that the application for, and the wiretap warrant itself lacked sufficient particularity as to enumerate the offenses being charged. After observing that "[p]articularity in an eavesdrop or wiretap application and order is critical to the constitutionality of a surveillance", id. at 779, the court analyzed United States v. Scott, 331 F.Supp. 233 (D.D.C.1971) and United States v. Mainello, 345 F.Supp. 863 (E.D. N.Y.1972). It concluded the holdings in both of those cases as well as those in United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970), United States v. Leta, 332 F.Supp. 1357 (M.D.Pa.1971), and United States v. King, 335 F.Supp. 523 (S.D. Cal.1971) demonstrated that federal courts have taken a pragmatic approach with respect to the particularity requirement. Tortorello, 480 F.2d at 780. Finally, even though the Tortorello court acknowledged that the applications before it were "somewhat broad," it held they nonetheless described the suspected offenses with a degree of particularity sufficient to meet the Fourth Amendment standards and the statutory requirement. Id. at 781. So, too, in United States v. Baynes, 400 F.Supp. 285 (E.D.Pa.1975) where the minimization and execute as soon as possible phrases were omitted, the court applied similar reasoning.[9] More on point to the issue in the present case are federal cases in which courts have sustained orders and warrants against Fourth Amendment challenges when the termination provision, as here, has been omitted. Those courts, though generally noting that "termination upon attainment of an objective" provision is mandatory, have read the missing statutory provision into the order and warrant. See, e.g., United States v. Cafero, 473 F.2d 489, 496 (3rd Cir.1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974); United States v. Cohen, 530 F.2d 43, 46 (5th Cir.) cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); United States v. Carubia, 377 F.Supp. 1099, 1107 (E.D.N.Y.1974).[10] *764 The conclusion we draw from the federal cases is that federal courts would read the statutory termination phrase "* * * necessary to achieve the objective of the authorization * * *" into the order and then examine the actions of the police officers to see if, in fact, the wiretap ended when the objective was achieved. The courts of several of the states, which after 1968, enacted statutes patterned after the federal Crime, Control and Safe Streets Act, have likewise had occasion to address the specific issue before us. A number of jurisdictions, in passing upon challenges to warrants permitting wiretap interceptions, have used an analysis similar to that employed by the federal courts. In State v. Moccia, 119 N.H. 169, 400 A.2d 44 (1979), even though the wiretap authorization had failed to specify that the interception must terminate when the objective was obtained, the warrant was upheld because the omission did not prejudice the defendants and was harmless beyond a reasonable doubt. Likewise, in New York, the omission of the termination provision was deemed a de minimis scrivener's error not justifying suppression when no prejudice was shown and the warrant was otherwise properly executed. People v. Scarnati, 133 Misc.2d 795, 508 N.Y.S.2d 365 (Cty.Ct.1986). Nebraska adopted the reasoning of United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973) and accordingly read into the warrant its statutory requirement that the interception must end when the objective was achieved. State v. Brennen, 218 Neb. 454, 356 N.W.2d 861 (1984). Idaho, New Jersey, and Illinois have likewise generally applied the federal analysis. See State v. Brown, 113 Idaho 480, 745 P.2d 1101 (App. 1987) cert. for rev. denied; State v. Christy, 112 N.J.Super. 48, 270 A.2d 306 (Cty.Ct 1970); People v. Wrestler, 121 Ill. App.3d 147, 76 Ill.Dec. 548, 458 N.E.2d 1348 (1984). On the other hand, in State v. Maloof, 114 R.I. 380, 333 A.2d 676 (1975), the Rhode Island court, in relying upon its own state constitution, rather than the Fourth Amendment, literally construed the statute and struck down a warrant which had omitted the termination provision.[11] In several other cases where the court seemingly applied a strict or literal compliance analysis, the challenged order failed to include other required provisions. See, e.g. Cross v. State, 225 Ga. 760, 171 S.E.2d 507 (1969); Johnson v. State, 226 Ga. 805, 177 S.E.2d 699 (1970); State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972); State v. Pottle, 296 Or. 274, 677 P.2d 1 (1984). The orders in Cross, Johnson and Siegel failed to include a statement whether the intercept would terminate when the described communication was first received, the minimization requirements, the termination provisions, and failed to name the individuals whose conversations could be intercepted. The Oregon court in State v. Pottle indicated it might view the matter differently if the order "omits no essential element and the shortcoming in the order had no consequence in the actual execution of the order." 677 P.2d at 10. *765 While this court has not before been called upon to address the specific issue raised by this case, on two previous occasions we have addressed two other provisions of the Privacy of Communications Act. As originally enacted, Minn. Stat. § 626A.05 required that the county attorney make the application for the intercept warrant. In State v. Frink, 296 Minn. 57, 206 N.W.2d 664 (1973) the assistant county attorney had applied for a wiretap. We held the warrant subsequently issued to be defective because the county attorney himself had not made application, and further held that the evidence obtained by the wiretap was inadmissible. Id. 206 N.W.2d at 665. We acknowledged the legislative intent underlying the inclusion in the statute of a provision limiting those who may apply for tap warrants to county attorneys reflected the public policy that such an intrusive authority should be restricted to a "publicly responsible official who is subject to the political process." Id. 206 N.W.2d at 674.[12] Ten years later in State v. Monsrud, 337 N.W.2d 652 (Minn.1983) we applied a "pragmatic and commonsense approach" to the particularity requirement by utilizing the traditional Fourth Amendment analysis in upholding a trial court denial of a defendant's suppression motion. Id. at 658 59. In Monsrud the defendant additionally challenged the sufficiency of the warrant's minimization procedure. While we agreed that the warrant contained inadequate minimization provisions, we held that only conversations which had been improperly intercepted would be subject to suppression. Id. at 660-61.[13] In this court respondent urges that we join the trial court and the court of appeals panel majority by holding the warrant facially defective for lack of literal compliance with the termination provision of Minn. Stat. § 626A.06, subd. 4(h) the so-called strict compliance approach. The state, on the other hand, argues that the preferable approach is the employment of a "pragmatic and common sense" approach employed by United States District Court in its examination of this same warrant, the dissent in the court of appeals, and our prior analysis in Monsrud. Appellant finds support for its position in Monsrud: respondent emphasizes the efficacy of Frink. Each party implies that the case relied upon by the other erroneously employed an improper statutory construction standard. On first reading, Frink and Monsrud, indeed, may appear to announce contradictory rulings. However, further analysis demonstrates that their holdings are reconcilable. We construed Minn. Stat. § 626A.05(1) strictly in Frink because we perceived a legislative policy to provide one additional scrutiny and consideration by an official responsible directly to the electorate before the intrusive wiretap procedure was authorized. The statutory mandate there was clear and required no interpretation. The purpose underlying the statutory requirement could not be served by extending that authority to a non-elected subordinate. To the contrary, in Monsrud, the statutory directive was less certain. Monsrud involved Minn. Stat. § 626A.06, subd. 4(c) which requires that the warrant set forth "a particular description of the type of communication sought to be intercepted, *766 and a statement of the particular offense to which it relates." Obviously, a determination of whether a warrant complied with the particularity requirement calls for some judgmental analysis to rule whether the language employed in the warrant meets the standard. When that judgment analysis is necessary, Monsrud holds, the court should apply "a practical and common sense" reading of the documents in resolving the issue. Monsrud, 337 N.W.2d at 659. Had we construed the statute in Frink to permit an unauthorized assistant county attorney to be the applicant, it would have amounted to unwarranted judicial legislation, whereas, in Monsrud the primary legislative concern evidenced by the particularity requirement was to ensure that the wiretap warrant would be so limited as to avoid the evils of the general warrant. Thus, Monsrud held that a court was justified in focusing on substance rather than literal verbatim statutory compliance to determine whether the underlying policy was effectuated. However, in both cases the court's inquiry was concentrated on determining whether the particular application, warrant, and execution complied with, and met, the concerns addressed in Osborn, Berger and Katz, as codified in the statute. The legislative concern that the duration of the warrant be limited only to time periods absolutely necessary to accomplish the result sought is evidenced by Minn. Stat. § 626.06, subd. 4(h) and subd. 5 which provide for termination upon attainment of the authorized objective, but in no event after a 10-day duration. Notwithstanding that Minn. Stat. § 626A.06, subd. 4(h) literally requires that the termination clause appear in the warrant, 626A.06, subd. 5 specifically directs that the authorization automatically expires when the objective has been reached or upon expiration of ten days, whichever occurs first. No warrant issued by a Minnesota court can (1) authorize a wiretap intercept for more than 10 days from issuance; (2) allow the surveillance to continue beyond the time necessary to achieve the authorized objective; or (3) permit continuation of monitoring after a named party has been charged. The authority to intercept conversation ends when the first of those three events occurs by statute regardless of what the warrant does or does not contain. The warrant in this case did not, and could not, extend the authorization beyond the statutory termination limits. Before the magistrate signed this warrant he was aware of the magnitude and scope of the operation under investigation, the numbers and type of persons known to have some degree of involvement in it, and that it had been operative for an extended period of time in the past and was ongoing. He also had been informed that because of these facts a high probability existed that the entire 10-day statutory period would be necessary to obtain the authorized objective. Moreover, he knew the nature and scope of the investigation warranted inclusion of a provision, as permitted by Minn. Stat. § 626A.06, subd. 4(e), authorizing continuation beyond the time the first communication relative to the alleged conspiracy had been obtained. Under those circumstances, inclusion of the omitted language, insofar as advancing any legislative concern, would have been essentially redundant. To hold this warrant to be constitutionally defective in the light of these circumstances, because it omitted a redundant clause, appears to elevate literal formalism over realistic substance. The statute, Minn. Stat. § 626A.06, subd. 5, itself affords the necessary protection against pernicious intrusion upon constitutional privacy rights.[14] *767 Not every omission to technically comply with literal wiretap statutory requirements renders a wiretap "unlawful" within the meaning of Minn. Stat. § 626A.12(1), nor does every technical omission justify suspression of disclosure of contents of the intercepted communications or derivative evidence. See, e.g., United States v. Chavez, 416 U.S. 562, 579, 94 S.Ct. 1849, 1858, 40 L.Ed.2d 380 (1974). The deterrent of suppression is reserved to instances where the defect in the warrant impedes upon statutory requirements that "directly and substantially" implement the legislative intent that employment of wiretaps be limited to those situations clearly calling for the employment of rare and intrusive procedures. See United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974). The judge who granted the suppression motions concluded the warrant was facially defective because, in his opinion, the omission from the warrant of the termination on attainment of objective phrase "leaves the decision to terminate the intercept to the intercepting officers and the prosecuting authorities, and not to the sound and impartial discretion of the magistrate." We reject that conclusion because we find it faulty in at least three respects. First, we observe that even had the omitted language been in the warrant, the initial decision as to whether or when the tap had attained the achieved objective always rests with the police or prosecutors it is only later that an impartial magistrate judges whether that initial decision was correct. Secondly, neither the statute nor any rule of law requires the police or prosecutors to submit progress reports to the magistrate during the course of the tap unless directed to do so by the warrant. Finally, in this case, though not required by law or by the warrant itself, the prosecutor did furnish the issuing magistrate with a progress report on the 8th day of the tap. The challenged warrant complies with statutory requirements in all respects except the omission herein discussed. That technical omission did not result in frustration of the statute's underlying purpose to minimize governmental intrusion into the lives of its citizens. The omission itself considered in the context of the circumstances surrounding the issuance of this warrant was not critical because the authority of no warrant may extend beyond the statutory limitations. Finally, there has been no showing of prejudice to these accuseds there has been no showing that the intercept would not have occurred exactly as it did even had it contained the omitted language. For those reasons, we concur with the United States District Court that this warrant was not facially defective to the extent of requiring suppression of intercepted conversations relative to the criminal conduct or evidence derived therefrom. United States v. Saliterman (U.S.D.M. CR 6-87-101) (1987).[15] Because the trial court hearing the suppression motions ruled that the warrant *768 was facially defective, it was unnecessary for it to make specific findings on the issue of whether the objective of the wiretap had been achieved at any time before the expiration of the ten-day period authorized by Minn. Stat. § 296A.06 (subd. 5). Therefore, we reverse and remand to the trial court to make specific findings on whether the objective had been attained prior to the expiration of the ten-day limit in Minn. Stat. § 626A.06, subd. 5.[16] WAHL, Justice (dissenting). I respectfully dissent. The trial court and the court of appeals correctly determined that the warrant authorizing the wire tap in this case was fatally defective on its face requiring suppression of the evidence obtained by the wire tap. The language of the Privacy of Communications Act[1] is explicit and unequivocal. In addition to meeting probable cause requirements, Minn. Stat. § 626A.06, subd. 4(h) requires that wiretap warrants [S]hall also specify * * *

+ 1 more citation in this opinion.

State v. Monsrud · 1983 4 citations

337 N.W.2d 652 (1983) STATE of Minnesota, Respondent, v. Arlyn MONSRUD, Appellant. STATE of Minnesota, Respondent, v. Alroy MONSRUD, Appellant. Nos. C1-82-481, C6-82-850. Supreme Court of Minnesota. August 19, 1983. *654 Friedberg & Peterson, Minneapolis, for appellants. Hubert H. Humphrey, III, St. Paul, Martin Berg, County Atty., Roseau, for respondent. Considered and decided by the court en banc without oral argument. SCOTT, Justice. Appellants Arlyn and Alroy Monsrud were convicted in separate trials in the Roseau County District Court of felony marijuana offenses occurring on August 14 and 19, 1981. These convictions resulted from an investigation by the Minnesota Bureau of Criminal Apprehension (BCA), in cooperation with local law enforcement officials, into marijuana trafficking in Roseau and surrounding counties in northwestern Minnesota. The investigation was directed primarily at Arlyn Monsrud, but his brother, Alroy Monsrud, was also arrested and convicted. The investigation included the use of a court-ordered wiretap of the telephone of Albert Monsrud, Jr., appellants' father, with whom Arlyn Monsrud lived. All issues in these appeals relate to this wiretap. We affirm. Government officials had for some time been investigating marijuana dealing in Roseau County. On August 10, 1981, the Roseau County Attorney, having been sworn *655 before a notary public, signed a written application for a wiretap of the phone of Albert Monsrud, Jr. BCA agent Gregory Hopps, the officer in charge of the investigation, took the application and its supporting affidavits to a Roseau County District Court judge who signed an order authorizing a wiretap of the phone for a ten-day period. Agents intercepted a total of 370 calls from August 12 to August 19, 1981, the day appellants were arrested. Many of these calls were very brief, or were wrong numbers or misdials. The parties have stipulated pursuant to Rule 29.02, subd. 10, Minn.R.Crim.P., as to the essential convictive evidence presented to the jury. It is sufficient to note that the August 14, 1981, offenses arose out of a sale of five pounds of marijuana to Agent Hopps by associates of appellants. The August 19, 1981, offenses arose out of an uncompleted sale of 20 pounds of marijuana to Agent Hopps. Transcripts of conversations intercepted pursuant to the wiretap were introduced at both trials. Prior to trial appellants moved for suppression of the wiretap evidence on several grounds. The trial court denied the motions, appellants were convicted, and this appeal was taken challenging the introduction at trial of the wiretap evidence. On appeal appellants contend that the wiretap evidence should have been suppressed because (1) the county attorney did not personally appear before the judge issuing the wiretap order, in violation of 18 U.S.C. 2516(2), Minn. Stat. § 626A.05, subd. 1 (1982), and Minn. Stat. § 626A.06, subd. 1 (1982); (2) the wiretap application did not establish that other investigative techniques were inadequate to expose the crimes, contrary to Minn. Stat. § 626A.06, subds. 1(c) and 3(c) (1982); (3) the wiretap order did not specify the offenses for which the wiretap was authorized under Minn. Stat. § 626A.05, subd. 2 (1980); (4) the application did not identify Alroy Monsrud as a person whose conversations were to be intercepted, in violation of 18 U.S.C. 2518(1)(b)(iv) and Minn. Stat. § 626.06, subd. 1(b)(iv) (1982); and (5) the agents executing the wiretap warrant failed to comply with the minimization requirement of 18 U.S.C. 2518(5) and Minn. Stat. § 626.06, subd. 4(h) (1982). In 1968 Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211 (1968), codified at 18 U.S.C. 2510-2520 (1976 ed.), which deals with wiretapping and other forms of electronic surveillance. By this Act Congress intended to provide law enforcement officers with some of the tools thought necessary to combat crime without unnecessarily infringing on the right of individual privacy. Scott v. United States, 436 U.S. 128, 130, 98 S.Ct. 1717, 1719, 56 L.Ed.2d 168 (1978). All state wiretaps are foreclosed under the federal statute unless authorized by a similar state statute which may be more restrictive, but not less so, than the federal act. State v. Frink, 296 Minn. 57, 65, 206 N.W.2d 664, 669 (1973). The Minnesota Privacy of Communication Act, Minn. Stat. Ch. 626A (1982), was enacted in 1969 in response to the federal wiretap statute. Ambiguities in our statute will be strictly construed against the state. Wolk v. DeCowski, 310 N.W.2d 131, 132 (Minn.1981); State v. Frink, 296 Minn. 57, 74, 206 N.W.2d 664, 674 (1973). 1. Appellants contend the wiretap order was improperly issued because the Roseau County Attorney did not appear in person before the district court judge who issued the order. This contention is based upon a construction of Minn. Stat. § 626A.05, subd. 1, § 626A.06, subd. 1, and 18 U.S.C. 2516(2). We reject appellants' contention and hold that neither the federal nor state wiretap statutes require the county attorney to appear in person before the district court judge issuing a wiretap warrant. 18 U.S.C. 2516(2) 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 *656 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 having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, * * *. (Emphasis supplied.) Minn. Stat. § 626A.05, subd. 1, provides: Application for warrant. The attorney general, or not more than one assistant or special assistant attorney general specifically designated by the attorney general or a county attorney of any county or not more than one assistant county attorney specifically designated by the county attorney may make application as provided in section 626A.06 to a judge of the district court or of the supreme court for a warrant authorizing or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made. No court commissioner shall issue a warrant under sections 626A.01 to 626A.23. (Emphasis supplied.) Minn. Stat. § 626A.06, subd. 1, provides, in part: The applications. Each application for a warrant authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of the district court or of the supreme court and shall state the applicant's authority to make such application. Each application shall include the following information: * * *. (Emphasis supplied.) This court has never decided whether a county attorney must personally appear before the issuing judge. At least one federal court has held that the federal statute, 18 U.S.C. 2516(2), does not require the chief prosecuting officer of a political subdivision to appear personally before the issuing judge. Alexander v. Harris, 595 F.2d 87, 89 (2d Cir.1979); United States v. Manfredi, 488 F.2d 588, 601 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Tortorello, 480 F.2d 764, 776-77 (2d Cir.), cert. denied 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973). A personal appearance has been found unnecessary under state statutes as well. See e.g., United States v. Tortorello, 480 F.2d 764, 776-78 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973) (New York statute); State v. Sidoti, 120 N.J.Super. 208, 211, 293 A.2d 678, 680 (App.Div. 1972) (New Jersey statute). Minn. Stat. §§ 626A.05, subd. 1, and 626A.06, subd. 1, do not expressly require the county attorney to personally appear before the issuing judge. The law enforcement officer actually conducting a particular investigation, as in this case, is generally in a better position to answer questions concerning probable cause, and that is the only practical justification for requiring a personal appearance. Requiring a formalistic appearance by the county attorney before the issuing judge in every case would not further the individual privacy interests the Act is designed to protect. 2. Appellants contend the wiretap evidence should have been suppressed because the application does not establish that normal investigative techniques were insufficient to obtain evidence of drug trafficking. The argument is based on Minn. Stat. § 626A.06, subd. 1(c), which requires each wiretap application to contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Minn. Stat. § 626A.06, subd. 3(c), requires the issuing judge to make a finding that other investigative procedures are inadequate for one of the reasons stated in § 626A.06, subd. 1(c). The trial court correctly found that the *657 application sufficiently established the inadequacy of normal investigative techniques. Although subds. 1(c) and 3(c) of § 626A.06 have never been construed by this court, the corresponding provisions of the federal statute, 18 U.S.C. 2518(1)(c) and (3)(c), have received extensive scrutiny. These sections were enacted to insure that wiretaps were not resorted to in those situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225 (1974). They are designed to insure that wiretapping is not routinely employed as the initial step in a criminal investigation, United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), and to guarantee that wiretapping or bugging occurs only when there is a genuine need for it and only to the extent that it is needed. Dalia v. United States, 441 U.S. 238, 250, 99 S.Ct. 1682, 1689, 60 L.Ed.2d 177 (1979). The government's burden of establishing compliance with these sections is light. United States v. Anderson, 542 F.2d 428, 431 (7th Cir.1976). It is not necessary to exhaust specific or all possible techniques before resorting to wiretaps. United States v. Daly, 535 F.2d 434, 438 (8th Cir.1976). The statutes are worded in the disjunctive and it is sufficient if the application shows that normal investigative techniques either (1) have been tried and failed; (2) reasonably appear unlikely to succeed if tried; or (3) would be too dangerous. The applications and supporting affidavits established the inadequacy of traditional investigative techniques. Arlyn Monsrud had been under investigation for selling marijuana for some time; he knew he was under investigation and had angrily confronted local law enforcement officers about it. Several informants had refused to aid in the investigation because they feared they would be hurt by Arlyn. Physical surveillance of his residence was not practicable because the land surrounding his home consists of open flat fields.[1] Furthermore, most of the neighboring farmers are his relatives. One neighbor who was not a relative refused to permit local officers to conduct surveillance from his land because of fear of Arlyn Monsrud. An undercover agent had been unable to reach Arlyn because persons with whom the agent dealt had been unwilling to introduce him. In July 1981, the intermediaries told the agent they suspected he was a "narc" and did not trust him. One of these persons had been convicted of assaulting an officer and expressed a willingness to do so again. They had also expressed concern to Hopps about suspicious vehicles in the area, which were in fact BCA surveillance vehicles. The purchases the undercover agent did make were arranged so as to avoid any direct contact by the agent with Arlyn. The applications showed that visual surveillance, undercover operations, and the use of confidential informants had been insufficient to expose the crime. The requirements of Minn. Stat. § 626A.06, subds. 1(c) and 3(c), were met. 3. Appellants contend that the intercepted conversations and evidence derived therefrom should have been suppressed because neither the application nor the warrant specified the particular offenses for which interception was authorized and the order or warrant did not limit interception to felony offenses. Minn. Stat. § 626A.06, subd. 4(c), requires each wiretap warrant to contain "a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." Minn. Stat. § 626A.06, subd. 3(a), requires the issuing judge to make a finding that "there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 626A.05, subd. 2." Minn. Stat. *658 § 626A.05, subd. 2 (1980),[2] lists the particular offenses for which a wiretap may be obtained: Offenses for which interception of wire or oral communication may be authorized. A warrant authorizing interception of wire or oral communications by investigative or law enforcement officers may only be issued when such interception may provide evidence of the commission of any criminal felony offense involving murder, manslaughter, aggravated assault, aggravated robbery, kidnapping, aggravated rape, prostitution, bribery, perjury, escape from custody, theft, receiving stolen property, embezzlement, burglary, forgery, aggravated forgery, gambling, and offenses relating to controlled substances, or an attempt or conspiracy to commit any such offense or said offenses, as punishable under sections 609.185, 609.19, 609.195, 609.20, 609.225, 609.245, 609.25, 609.291, 609.321 to 609.324, 609.42, 609.48, 609.485, subdivision 4, clause (1), 609.52, 609.53, 609.54, 609.58, 609.625, 609.63, 609.76, 609.825, and chapter 152. The pertinent facts from the application, affidavits and surveillance order are as follows: The application and affidavits described in great detail the information learned by Agent Hopps in his undercover investigation and specifically described several large marijuana purchases made by Hopps from Arlyn Monsrud's associates. It stated that the subject phone was used by Arlyn Monsrud and others to commit felony offenses relating to the possession, acquisition and transfer of controlled substances in violation of Minn. Stat. Ch. 152 and/or attempt or conspiracy to commit such offenses in violation of Minn. Stat. §§ 609.17 and 609.175, and that the officers seeking the warrant had responsibility for the investigation of such felony offenses. The types of communications to be intercepted were described as conversations between Arlyn Monsrud and others concerning the making of arrangements for the transfer of drugs, particularly marijuana, including conversations concerning negotiations for the price of drugs, quantities involved, place and means of transfer, and security for the transfer. The search warrant findings and order incorporated the facts presented in the application. It described the conversations to be intercepted as those of Arlyn Monsrud and others in regard to the possession, acquisition and distribution of controlled substances. It also stated that the conversations would concern plans for trafficking in controlled substances and avoiding detection and apprehension by law enforcement officials. The issuing court also found that the application contained a detailed statement as to felonious offenses that had been committed or might be committed relating to the possession, acquisition and distribution of controlled substances, as that term is used in Minn. Stat. Ch. 152. We hold that, taken as a whole, the application and order described the suspected offenses and the conversations to be intercepted with the degree of particularity required by the Fourth Amendment and Minn. Stat. § 626A.06, subds. 3(a) and 4(c). Courts construing corresponding provisions of the federal statute, 18 U.S.C. 2518(1)(b)(iii) and (4)(c), take a pragmatic and commonsense approach to the particularity requirement. It is, of course, impossible for the officers to know in advance the actual content of conversations that will be intercepted and the description therefore must be sufficiently flexible to permit the interception of all relevant conversations. In determining whether the order and application are sufficiently particular, the papers as a whole must be considered, including those portions which recite facts to establish probable cause. United States v. Tortorello, 480 F.2d 764, 780 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973). *659 Appellants' specific objections are that the search warrant order itself does not specifically limit the interception to felony offenses and does not cite the particular sections within Minn. Stat. Ch. 152 for which interception was authorized. Although the order itself did not use the word "felony," it is clear from the court's findings accompanying the order, and the application that had been incorporated therein, that the interception the court was approving was for the felony offenses involving marijuana that were the subject of the application. Similarly, the fact that the order did not cite the specific sections within Chapter 152 for which interception was authorized is not fatal. Minn. Stat. § 626A.05, subd. 2, which lists the offenses for which an interception may be authorized, does not include such specificity. Suppression is inappropriate where, as here, a practical and commonsense reading of the papers provides an adequate description of the offenses for which interception is authorized. 4. Appellant Alroy Monsrud contends that the wiretap evidence should have been suppressed because the application did not name him as a person whose conversations were to be intercepted. Minn. Stat. § 626A.06, subd. 1(b)(iv), requires every wiretap application to contain "the identity of the person, if known, committing the offense and whose communications are to be intercepted." The trial court correctly rejected appellant's argument. In construing the corresponding provision of the federal statute, 18 U.S.C. 2518(1)(b)(iv), the United States Supreme Court held that a wiretap application must name an individual "if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept the individual's conversations over the target telephone." United States v. Donovan, 429 U.S. 413, 428, 97 S.Ct. 658, 668, 50 L.Ed.2d 652 (1977). An unintentional failure to name an individual does not require suppression, at least where the application satisfies the statutory requirements in all other respects and there is no suggestion that the failure to identify the individual was for the purpose of keeping relevant information from the issuing judge. Id. at 433-36, 97 S.Ct. at 671-72. No suppression is required because the agents in this case did not have probable cause to believe Alroy was involved when the application was sought and they did not expect to intercept his conversations. Furthermore, there was nothing to suggest that the failure to name Alroy was for the purpose of keeping relevant information from the issuing judge. Although both Arlyn and Alroy had been under investigation for five years before the wiretap, Agent Hopps testified that he did not know Alroy was still in the area at the time the application was made. He believed Alroy was residing in Fargo, North Dakota, at the time. He also testified that had he been aware of Alroy's involvement at the time the application was made he would have sought a tap on his phone as well. 5. Appellants contend that suppression is required because the agents executing the wiretap warrant failed to minimize the interception of communications not related to the investigation as required by Minn. Stat. § 626A.06, subd. 4(h). That statute requires each wiretap warrant to contain "a statement that the warrant shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under section 626A.01 to 626A.23 and must terminate upon attainment of the authorized objective, or in any event in ten days." The warrant in this case contained the required statement. Prior to operation of the wiretap the officers met with a special assistant attorney general who discussed and explained the minimization procedure. The procedure employed in this case was that when officers determined a call was not about drugs, the tape recorder would be turned off. The officers would, however, continue to listen to the conversations and turn the recorder on again only if the call did turn to drugs. *660 Of the 370 "calls" intercepted during the wiretap, over 160 were wrong numbers, no answers, busy signals, false alarms, etc. The overwhelming majority of the remaining calls were three minutes or less in length. On the basis of the stipulation in the briefs, it appears that three conversations were produced at Alroy Monsrud's trial and seven at Arlyn Monsrud's trial. Those conversations introduced at trial were related to the crimes for which appellants were convicted and for which the wiretap was authorized. We hold that the procedure employed by the agents executing the warrant in this case did not satisfy the minimization requirement of Minn. Stat. § 626A.06, subd. 4(h). We also hold, however, that noncompliance with the minimization requirement did not require the suppression of the conversations that were introduced at appellants' trials. The procedure employed by the agents listening to but not recording calls determined to be non-pertinent is not an acceptable minimization procedure. The minimization requirement of § 626A.06, subd. 4(h), must be read as requiring the intercept order to be executed in such a way as to minimize the monitoring or hearing of communications not subject to interception under the Act. Mere non-recording of overheard conversations does not constitute minimization. Every conversation overheard by the government is intercepted, regardless of whether or not it is recorded. Other courts have held that listening to, but not recording, conversations overheard during a wiretap is not an acceptable minimization procedure. See, e.g., United States v. Bynum, 360 F.Supp. 400, 408-09 (S.D.N.Y.1973); Morrow v. State, 249 S.E.2d 110, 119, 147 Ga.App. 395, 405-06 (1978).[3] This interpretation of the minimization requirement is buttressed by other provisions of the Minnesota Privacy of Communications Act. Minn. Stat. § 626A.08, subd. 1 (1982), expressly requires that every part of every communication, conversation or discussion overheard pursuant to the Act be completely recorded. The legislature could not have intended that agents satisfy the minimization requirement of § 626A.06, subd. 4(h), through the violation of other provisions of the statute. The minimization requirement may indeed pose practical problems for the agents charged with executing the wiretap order. Agents cannot be expected to possess the prescience necessary to determine in advance which calls will be pertinent or when a seemingly innocent conversation will turn to criminal matters. The statute therefore does not require perfection from the agents or prohibit the interception of non-pertinent conversations it only requires that the wiretap be conducted in such a way as to minimize the interception of conversations not otherwise subject to interception. Law enforcement officers have developed numerous minimization procedures which the courts have found acceptable, such as spot listening to calls determined to be nonpertinent, listening only to calls by or to certain individuals or phone numbers, and determining patterns of conversational activity which provide the monitors with reasonable expectations as to the parties and character of conversations. Judicial supervision during surveillance has been called a vital part of the minimization requirement. See, James E. Carr, The Law of Electronic Surveillance, § 5.07[3] (1977). The conclusion that the minimization effort employed in this case did not satisfy the statute's mandate does not end the inquiry. The remaining issue is whether the failure to minimize requires the suppression of all conversations intercepted, or only those improperly intercepted. Even though the minimization efforts employed here did not satisfy the statute's mandate, only those conversations which were not properly intercepted would be subject to suppression. The great *661 weight of authority and, in our judgment, the sounder reasoning holds that the failure to minimize requires only the suppression of those conversations which should not have been seized and not the suppression of those conversations which were appropriately seized. United States v. Cox, 462 F.2d 1293, 1301-02 (8th Cir.1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974); United States v. Sisca, 361 F.Supp. 735, 746-47 (S.D.N.Y.1973), aff'd, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); United States v. Mainello, 345 F.Supp. 863, 874-77 (E.D.N.Y.1972); United States v. LaGorga, 336 F.Supp. 190, 197 (W.D.Pa.1971); Rodriguez v. State, 297 So.2d 15, 21 (Fla.1974); Bell v. State, 22 Md.App. 496, 505, 323 A.2d 677, 681-82 (1974), cert. denied, 421 U.S. 1003, 95 S.Ct. 2405, 44 L.Ed.2d 671 (1975); State v. Sidoti, 120 N.S.Super. 208, 214, 293 A.2d 678, 681-82 (App.Div.1972); State v. Dye, 60 N.J. 518, 536-40, 291 A.2d 825, 834-36, cert. denied, 409 U.S. 1090, 93 S.Ct. 699, 34 L.Ed.2d 675 (1972). This approach is consistent with traditional Fourth Amendment doctrine, which holds that the seizure of some items beyond those specified in a search warrant does not result in the suppression of those items which were validly seized. Rather, only those items seized which are beyond the permissible scope of the warrant are subject to suppression. See, United States v. Sisca, 361 F.Supp. 735, 746-47 (S.D.N.Y. 1973), aff'd, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974), and cases cited therein. In this case the agents were acting in good faith pursuant to a lawfully issued order based upon probable cause. If, in their good faith efforts in executing the warrant they seized conversations beyond those authorized by the warrant, the remedy would be to limit the suppression to those conversations seized in violation of the warrant and statute. It has been suggested by some that this approach is unsatisfactory because it provides law enforcement officers with no incentive to minimize the interception of nonpertinent conversations since they will in any case still get the use of the highly incriminating calls. Carr, The Law of Electronic Surveillance, § 5.07[4][d], pp. 266-67 (1977). The statutory scheme in Minnesota, however, by imposing civil liability upon persons who intercept communications in violation of the Act, provides officers with sufficient incentive to comply with the minimization requirement.[4] Affirmed. SIMONETT, Justice (concurring specially). I agree with the court's opinion but wish to comment on the majority's statement that "[i]f, in their good faith efforts in executing the warrant they [the law enforcement agents] seized conversations beyond those authorized by the warrant, the remedy would be to limit the suppression to those conversations seized in violation of the warrant and statute." *662 In other words, only conversations that are properly seized may be admitted. This is not the same thing, it seems to me, as saying that only nonpertinent conversations will be suppressed. If an unlawful intercept occurs because of a failure to minimize and a pertinent conversation is obtained thereby, that conversation would be suppressible. See United States v. Suquet, 547 F.Supp. 1034, 1044 (1982); United States v. Dorfman, 542 F.Supp. 345, 395 (N.D.Ill. 1982).[1] Some cases suggest, further, that a distinction should be made between minimization efforts which are simply inadequate or fail to comply with the warrant requirements and those situations where there is a "flagrant disregard" of the minimization limitation. See, e.g., Suquet, 547 F.Supp. at 1039-40, and cases there cited. When minimization is flagrantly disregarded so that the particularized search authorized by the warrant becomes, in practice, a general search prohibited by the fourth amendment, total suppression of the intercepts may be appropriate. People v. Brenes, 42 N.Y.2d 41, 396 N.Y.S.2d 629, 364 N.E.2d 1322, 1328 (1977) (total suppression upheld where agents acted "as if in defiance" of the minimization requirements). Though difficult to apply, it seems to me this distinction may have merit and might be applicable in a case of egregious monitoring abuse, such as where no effort at all is made at minimization. Here, although the effort fell short, the agents did attempt to minimize their interceptions by distinguishing between pertinent and nonpertinent conversations and by turning off the recording device for those which were nonpertinent. The effort fell short because the agents should also have stopped listening when they were not recording. This violation, however, was not in flagrant disregard or defiance of the law; indeed, it was apparently based on an alternative interpretation of the statute, an interpretation we now reject. I would, therefore, affirm the trial court's ruling. WAHL, Justice (dissenting). Because I conclude that the wiretap warrant was obtained and executed in violation of certain provisions of 18 U.S.C. 2510-2520 (Title III) and the Minnesota Privacy of Communications Act, Minn. Stat. ch. 626A (1982), hence in violation of the right of the people to be secure in their persons and houses from unreasonable searches and seizures, I must respectfully dissent. Wiretapping, that ultimate invasion of personal privacy, was brought squarely within the purview of the Fourth and Fourteenth Amendments by the United States Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Recognizing "few threats to liberty * * * greater than that posed by the use of eavesdropping devices," the Berger court concluded that "[w]hile `[t]he requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement,' it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one's home or office are invaded." Id. at 63, 87 S.Ct. at 1885 (citation omitted). The Court identified a number of prerequisites a statute authorizing wiretapping must contain in order to pass constitutional muster: (1) There must be probable cause to believe that a particular offense has been committed; (2) the conversations to be intercepted must be particularly described; (3) the surveillance must be for a specific and limited period of time, to minimize the intrusion into privacy; (4) continuing probable cause must be shown *663 if the warrant is to be renewed; (5) eavesdropping must terminate once the evidence sought has been seized; (6) there must be notice unless a factual showing of exigency is made; and (7) there must be a return on the warrant so that the court may supervise and restrict the use of the seized conversations. C. Fishman, Wiretapping and Eavesdropping, 7, n. 17 (1978) (summarizing Berger, 388 U.S. at 54-60, 87 S.Ct. at 1881-84). There is no constitutional challenge in the cases before us to the federal and state wiretapping statutes, for they were drafted to meet constitutional requirements. Such statutes provide us no protection from unlawful searches and seizures, however, unless we adhere to them in letter and in spirit. To that end this court has strictly construed Minnesota's wiretapping statute. In State v. Frink, 296 Minn. 57, 206 N.W.2d 664 (1973), we refused to permit an assistant county attorney to apply for a wiretap warrant where the statute did not expressly so authorize. We stated there that "in an area as sensitive as the invasion of privacy of oral communications, there is no room to expand our statute beyond what Congress and the legislature expressly authorized." Id. at 74, 206 N.W.2d at 674. More recently, in Wolk v. DeCowski, 310 N.W.2d 131 (Minn.1982), we took a strict approach in deciding for which offenses a wiretap warrant could issue and resolved the statutory ambiguity against the state. We noted that "normal standards of statutory interpretation and construction cannot be followed in resolving ambiguities in a statute dealing with interception of private communications to citizens." Id. at 133. Strict construction of the statute requires that the attorney authorized to apply for the wiretap also be present before the issuing court. Minn. Stat. § 626A.05, subd. 1, states that the county attorney may apply for a warrant "as provided in section 626A.06, to a judge." Section 626A.06, subd. 1, provides, as the majority notes, that the application shall be made in writing, but section 626A.06, subd. 2, provides that the court, "before issuing any warrant thereon, may examine on oath the person seeking the warrant." The statute requires the applicant to be cognizant of all the facts which are relied on in the application. Any facts elicited from police officers before the court but not contained in the sworn application would permit issuance of a warrant based on facts unknown to the applicant if he is not required to appear personally. I would hold, as we did in Frink and Wolk, that any ambiguity be resolved against the state. I would require a personal appearance by the applicant. Since in this case the applicant did not appear, the warrant was invalidly issued. Second, and even more importantly, the officers failed to minimize their interceptions as required by section 626A.06, subd. 4(h). No attempt was made to intercept only those conversations which were drugrelated. From August 12 to August 19, 1981, government agents intercepted a total of 370 calls. It is clear from the transcript of the recorded conversations that the vast majority of those conversations, including many of the lengthy ones, had nothing to do with drug trafficking activity but concerned daily activities, social endeavors or running a farm. A great many of the intercepted calls were made by or to members of the Monsrud household whose conversations showed no knowledge of drug trafficking and who were not under investigation. Even those conversations which the agents did not record, though recording is required by the Act, were monitored auditorily. Furthermore, the monitoring agents did not make the court that issued the warrant aware of the types of conversations that were being intercepted, so there was no judicial supervision over the interceptions. The majority opinion recognizes that the procedure followed in this case violated the minimization requirement but would suppress only those conversations which were improperly intercepted. Such a remedy is useless. Because the only conversations the prosecution is interested in are those which are pertinent, suppression of nonpertinent conversations will have no effect on the *664 prosecution of cases. It will provide no incentive to law enforcement officers to put forth any but the most nominal effort to minimize their interceptions. The possibility that some relevant information may be missed if the interception is minimized in no way outweighs the privacy interests of the parties using a wiretapped phone line. As Justice Brandeis reminds us, in his stirring dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), "[t]he makers of our Constitution * * * conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men." Whether or not the nonpertinent conversations are used at trial is irrelevant. The fact remains that the privacy of unwitting and innocent individuals has been illegally infringed. The only effective way to prevent such infringement is to suppress all evidence obtained by the wiretap. A civil remedy, easily defeated by the officer's "good faith," does not provide a sufficient deterrent where the officer is assured of use of any pertinent evidence he uncovers in an unreasonably broad interception. I would reverse the convictions, remand the case of Arlyn Monsrud for a new trial and remand the case of Alroy Monsrud for a determination of the state's claim that the introduction of the wiretap evidence was harmless error. NOTES [1] We have not overlooked the "open field" doctrine discussed in State v. White, 332 N.W.2d 910 (Minn.1983). [2] Section 626A.05, subd. 2, was amended in 1982, apparently in response to this court's ruling in Wolk v. DeCowski, 310 N.W.2d 131 (Minn.1981). The version quoted above was in effect when the wiretap order in this case was issued. [3] One court has held that listening to but not recording conversations overheard is an acceptable minimization procedure. Spease v. State, 275 Md. 88, 338 A.2d 284 (1975). We decline to follow it. [4] Minn. Stat. § 626A.13 (1982), provides:

+ 2 more citations in this opinion.