United States v. Becker
United States v. Becker
Opinion of the Court
OPINION
The defendants, indicted for violation of section 1955 of Title 18, United States Code (illegal gambling business), and of the conspiracy statute, section 371 of Title 18, United States Code, move to suppress all evidence derived as a result of a wiretap order issued on May 11, 1971, by a Judge of this Court, under the relevant provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
The constitutionality of the electronic surveillance authorization provisions of Title III has been upheld by at least five federal district courts and by one Court of Appeals, to date.
“[W]e are mindful that there is now a comprehensive statute making unauthorized electronic surveillance a seri*549 ous crime. The general rule under the statute is that official eavesdropping and wiretapping are permitted only with probable cause and a warrant. Without experience showing the contrary, we should not assume that this new statute will be cavalierly disregarded or will not be enforced against transgressors.”
Upon consideration of the various objections advanced by the defendants, the Court holds that Title III upon its face is not unconstitutional.
The defendants next contend that the order authorizing the wire interception was invalid and that there was no showing of probable cause sufficient to warrant the order. They contend, among other matters, it is defective because it contains no specific time during which the tap can be maintained. The telephones here involved were private lines, and the affidavit submitted in support of the order established that they were regularly used in an extremely active gambling enterprise. It is a matter of common knowledge that the activities of such an enterprise — the receiving and dispensing of information and wagers in regard to various types of sporting events, such as horse racing, boxing, baseball, hockey, football, which take place at either coast of the continent and points in between and at different hours of the day and night — are not limited to such specific hours that an interception order can, as a practical matter, define precisely and limit the period during which interception can be conducted. As the Supreme Court observed: “[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract.”
Defendants’ other objections to the affidavits on the basis of which the order was issued are equally without merit. The judge who issued the order was called upon, as “a neutral and detached magistrate,”
Finally, the reliability of the informants who had previously furnished information concerning gambling activities and other criminal matters which resulted in arrests and convictions had been amply established and met the test of Spinelli v. United States.
United States v. Pearce,
The requirement that the agents seeking the order have reason to credit the statements of the informers was satisfied in view of the facts that (1) the information they furnished in the past resulted in arrests and convictions and at no time had the sources been known to furnish false information;
The motion to suppress the wiretap evidence seized pursuant to the order is denied.
. §§ 2510-2520 of Title 18 of the United States Code, as amended by the Organized Crime Control Act of 1970, Pub.L.No. 91-452, 84 Stat. 922.
. 18 U.S.C. § 2518(9).
. Cox v. United States, 449 F.2d G79 (10th Cir., Oct. 13, 1971) ; United States v. Perillo, 333 F.Supp. 914 (D.Del. 1971) ; United States v. Cantor, 328 F.Supp. 561, 568-569 (E.D.Pa. 1971) ; United States v. Sklaroff, 323 F.Supp. 296, 304-308 (S.D.Fla. 1971) ; United States v. Eseandar, 319 F.Supp. 295, 297-302 (S.D.Fla. 1970), appeal dismissed for lack of jurisdiction sub nom. United States v. Dudley, 427 F.2d 1140 (5th Cir. 1970) ; United States v. Tantillo, Docket No. 1912-69 (D.D.C., Sept. 21, 1970) (without opinion).
. 388 U.S. 41, 87 S.Ct. 1873, IS L.Ed.2d 1040 (1967).
. 389 U.S. 347, 8S S.Ct. 507, 19 L.Ed.2d 576 (1967).
. 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966).
. Cf. McGowan v. Maryland, 366 U.S. 420, 425 — 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
. 394 U.S. 165, 175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). Justice Fortas, however, specifically noted in his opinion, concurring in part and dissenting in part, that although he referred to relevant provisions of the Act, he had not considered its constitutionality, and he expressed neither agreement nor disagreement “with the majority’s statements concerning the Act.” Id. at 208 n. 10, 89 S.Ct. at 985.
. United States v. Ventresea, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).
. United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir.), cert, denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970).
. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed.2d 436 (1948).
. Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1957).
. United States v. Ramirez, 279 F.2d 712, 716 (2d Cir.), cert, denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960).
. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) ; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; United States v. Archuleta, 446 F.2d 518 (9th Cir. 1971) ; United States v. Shipstead, 433 F.2d 368, 372 (9th Cir. 1970) ; United States v. Bridges, 419 F.2d 963, 965 (8th Cir. 1969) ; Gallagher v. United States, 406 F.2d 102 (8th Cir.), cert, denied, 395 U.S. 968, 89 S.Ct. 2117, 23 L.Ed.2d 756 (1969) ; United States v. Pascente, 387 F.2d 923 (7th Cir. 1967), cert, denied, 390 U.S. 1005, 88 S.Ct. 1248, 20 L.Ed.2d 105 (1968).
. 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See also United States v. Shipstead, 433 F.2d 368 (9th Cir. 1970) ; United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert, denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970).
. 275 F.2d 318 (7th Cir. 1960).
. See United States v. Mendoza, 433 F.2d 891, 894-895 (5th Cir. 1970), cert, denied, 401 U.S. 943, 91 S.Ct. 953, 28 L. Ed.2d 225 (1971) ; United States v. Berkus, 428 F.2d 1148 (8th Cir. 1970) ; United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert, denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970) ; United States v. Ramos, 380 F. 2d 717 (2d Cir. 1967).
. See United States v. Alonzo, 447 F.2d 126 (2d Cir. 1971) ; United States v. Chin Dan Fook, 413 F.2d 1016 (2d Oir. 1969), cert, denied, 397 U.S. 928, 90 S. Ct. 936, 25 L.Ed.2d 107 (1970).
. See United States v. Alonzo, 447 F.2d 126 F.2d 381 (2dCir. 1971). (2d Cir. 1971); United States v. Gardner, 436
Reference
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- United States v. Richard BECKER
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